State joins in abortion medication effort
States with Republican attorneys general have pushed back on a new federal policy allowing abortion medication to be mailed or purchased from retail pharmacies.
Arizona is no longer one of those states.
Instead, Arizona Attorney General Kris Mayes has added her name to a Feb. 16 letter with 22 other Democratic attorneys general urging Walgreens and CVS to ship the medication to anti-abortion states and ignore the Republicans’ legal arguments.
One major sticking point for Arizona: State law doesn’t allow for use of the abortion drugs, mifeprostone and misoprostol, in such a manner.
“I’m obviously supportive of a woman’s ability to access medication abortions,” Mayes said in an interview. But the issue is “complicated because of these barriers that the Legislature has thrown up.”
In the letter, Mayes and the other Democratic attorneys general ask Danielle Gray and Sam Khichi, the executive vice presidents of Walgreens Boots Alliance Inc. and CVS Health, to make the drugs available as “broadly as possible.”
The officials referred to the pharmacies’ recent decision to make the drugs available from their stores for the first time with a prescription, which follows a policy change allowing the move by the U.S. Food and Drug Administration. Mifeprostone and misoprostol are typically distributed and used at abortion clinics and can be taken up to 10 weeks of gestation.
Twenty Republican attorneys general sent a letter to CVS and Walgreens earlier this month, threatening that courts would reject the Biden administration’s “bizarre interpretation” of federal law in allowing the policy change. The 1873 federal Comstock Act, which banned the mailing of pornographic material or information about obtaining abortions, contradicts the new policy, they wrote.
Not true, say the Democratic attorneys general. As the U.S. Department of Justice’s Office of Legal Counsel recently wrote in a memorandum opinion, they told the pharmacies in their letter, “since the early twentieth century, federal courts have repeatedly and consistently held that the Comstock Act does not categorically prohibit mailing items that can be used to terminate a pregnancy, and does not apply unless the sender intends the recipient to use them unlawfully.”
They also noted the drugs’ good safety record and mentioned the importance of access to the drugs in the aftermath of last year’s overturning of the right to abortion by the U.S. Supreme Court.
“In a time when access to abortion is under attack — now more than ever in the past 50 years — we stand in full support of pharmacies like Walgreens and CVS becoming FDA-certified to dispense and mail these essential medications,” they wrote.
How Arizona laws limit abortion medication
But as abortion providers noted in January after the FDA’s rule change, Arizona is not affected because of laws put in place over the years by Republican legislators who have sought to restrict abortion or ban it entirely. Arizona requires in-person counseling prior to an abortion and bans the use of telemedicine for the procedure, reducing its usefulness for people in rural areas. Arizona law also requires a 24-waiting period before a second, mandatory office visit.
Abortion is currently legal in Arizona up to 15 weeks of pregnancy at a licensed clinic. That could change, however, as court cases still in play will decide whether a state law from 1864 that mandates prison time for abortion providers can be applied following last year’s Supreme Court decision.
Mifepristone could also face a nationwide ban as soon as this month, depending how a federal judge in Texas rules in a lawsuit challenging the FDA decision.
Abortion foe Cathi Herrod, president of the Center for Arizona Policy, said Mayes and the other Democrats aren’t “serving women” by pushing for access to the drugs at pharmacies.
“Women deserve better than going to a drugstore to get abortion drugs that not only take the lives of their unborn children but also carry significant health risks for women,” she said.
Studies have shown that while some women have complications from using the drugs, a 2013 review of 87 studies of the drugs deemed them “highly effective and safe.”
Representatives from CVS didn’t immediately return messages.
“We are not dispensing mifepristone at this time,” Walgreens spokesperson Fraser Engerman told Bloomberg News on Feb. 16. “We intend to become a certified pharmacy under the program, however we will only distribute in those jurisdictions where it is legal to do so if we are certified.”
Whatever happens, providers from outside the U.S. will ship abortion pills to U.S. residents, including Aid Access, operated by a Dutch physician, and Women on Web, which is based in the U.K.
Arizona law states that a “manufacturer, supplier or physician or any other person is prohibited from providing an abortion-inducing drug via courier, delivery or mail service,” but no law specifically prevents Arizonans from requesting and receiving abortion medication through the postal service.