Legal uncertainty hovers over Walgreens decision on abortion pill dispensing

The country’s second-largest pharmacy chain said it will not dispense abortion pills in several states — including some without current restrictions — after coming under pressure from state officials and anti-abortion advocates.

Supporters of abortion rights say the move by Walgreens isn’t a surprise, but it shows the complicated situation facing states, patients, pharmacies and pharmacists since the Supreme Court overturned Roe v. Wade last summer.

The decision from Walgreens comes after 20 Republican state attorneys general in a letter last month warned of legal consequences if the company started distributing the drug. 

A Walgreens spokesman said the company has responded to each attorney general who signed the letter, telling them the company will not dispense mifepristone — a medication used to end pregnancy — in its brick-and-mortar pharmacies and will not mail it to those states.

Among them were four states — Alaska, Iowa, Kansas and Montana — where medication abortion remains legal due to court challenges.

In Kansas, for example, voters said the right to an abortion is protected by the state constitution. A state law prohibited anyone except a physician from dispensing mifepristone, but it has since been blocked in court. 

Abortion is also legal in Montana, and the state’s requirement for a patient to have an in-person visit with a physician before being prescribed mifepristone is being challenged.  

But Walgreens will refrain from dispensing the drug in those states, citing the complex legal situation.

“This is a significant victory for the pro-life cause and for women’s health,” Kansas Attorney General Kris Kobach (R) said in a statement. “The dispensing of these pills without a supervising physician present would expose women to complications and potentially to coercion as well. I’m grateful Walgreens has responded quickly and reasonably and intends to fully comply with the law.”

After the Biden administration in January moved to allow retail pharmacies to dispense mifepristone, Walgreens said it planned to seek the federal certification to do so — but only in the states where it is legal.

Walgreens spokesman Fraser Engerman said the company will distribute mifepristone “only in those jurisdictions where it is legal and operationally feasible.”

Walgreens has no plans to use its mail order pharmacy business to dispense mifepristone. 

“At this time, we are working through the certification process, which includes the evaluation of our pharmacy network to determine where we will dispense Mifepristone and training protocols and updates for our pharmacists,” Walgreens wrote in its response to Kobach. 

“Walgreens does not intend to dispense Mifepristone within your state and does not intend to ship Mifepristone into your state from any of our pharmacies. If this approach changes, we will be sure to notify you.”

Medication abortion is the nation’s most common method for ending a pregnancy, and mifepristone has been approved by the Food and Drug Administration as safe and effective for more than 20 years.

Even so, the availability of medication abortion today depends on state laws. Ever since the Supreme Court overturned Roe v. Wade, an increasing number of states have restricted abortion completely or enacted barriers to medication abortion.  

In addition, a looming decision by a federal judge in Texas could undo mifepristone’s approval and result in it being taken off the market. A decision in that case is expected any day.

Kirsten Moore, executive director of the Expanding Medication Abortion Access Project, said the Walgreens decision is disappointing and will hurt patients in the states where abortion is still legal.

Still, she said she understands the company’s position. Until there’s a national legislative fix clarifying the right to mifepristone, there will be too much uncertainty, she said.

“These companies are in a place right now where they can legitimately … say, there is a lot of chaos out here, we’re going to take a beat and see how things shake out for the foreseeable future before we spend any of our corporate resources certifying for something that might or might not be available, that might be pulled off the market in a week’s time,” Moore said.