In January, some pharmacy chains said they would sell mifepristone to people with prescriptions. This came after the US Food and Drug Administration changed its policy to let certified pharmacies sell the abortion drug directly to customers.
A few months later, Walgreens, one of the largest pharmacies in the country, suddenly said that it wouldn’t sell mifepristone in 21 states where Republicans were in charge. In a tweet on Tuesday, Democratic Governor Gavin Newsom said that the state of California “won’t do business” with the chain or “any company that cowers to extremists and puts women’s lives at risk.” Walgreens told NPR in a statement on Friday that it is working to sell the drug in “jurisdictions where it is legal and operationally feasible.”
One reason why Walgreens’ decision is so surprising is that the company has decided not to sell the drug in several states, including Florida, Kansas, and Montana, where abortion is legal or protected by the state constitution.
In Florida, Republican Gov. Ron DeSantis has said he will sign a bill to ban abortions after six weeks, but nothing has made it to his desk yet, and abortion is still legal in the state until 15 weeks. Last year, voters in Kansas and Montana turned down ballot measures that would have made it harder to get an abortion.
Walgreens didn’t seem to care about any of that. It also didn’t matter that nobody had sued to stop the sale of the abortion drug. The threat of legal action was enough to get the company to change its mind.
Walgreens’ decision sends a chilling message: for some people in corporate America, the threat of legal consequences is more important than the real lives of the women. In a letter sent to Walgreens and other pharmacies in February, a number of state attorneys general falsely said that it was against the law to send abortion drugs through the mail. So, what did they really threaten?
They pointed to the Comstock Act, an anti-drug law from the 1800s that says you can’t use the mail to send or get any drug that will “be used or applied to produce abortion.” Here, it’s important to note that the Biden Justice Department says the Comstock Act only applies to drugs that are meant for criminal use and not to drugs that are legally prescribed. If you follow the attorneys general’s interpretation, it would seem that all abortions, even surgical ones, that involve an item or medicine sent in the mail would be illegal.
Of course, federal laws are not enforced by state prosecutors, but these attorneys general found a way around that. They said they would go after Walgreens for breaking state laws that say you can’t mail abortion pills. But these rules go against what the FDA says. In separate lawsuits, people in West Virginia and North Carolina say that federal policy is more important than state laws that are at odds with it.
The attorneys general can also use the Comstock Act, but they can do it in a different way. Many states have laws against misleading business practices. These laws cover everything from false advertising to telemarketers who bother people. The attorneys general say that selling abortion pills is against these consumer protection laws because abortion is already against federal law. They say this is true no matter how it is done or what the state law says.
Some conservative attorneys general have also said that stores that sell mifepristone could be charged with breaking federal laws against racketeering. But the federal racketeering law says that state prosecutors can only file lawsuits if “business or property” is hurt. It’s hard to see how state attorneys general could even have the right to sue.
Conservative prosecutors have said a lot, but they haven’t done anything yet, and it’s not clear that any of these cases will go anywhere. The decision by Walgreens is shocking because it reminds us of a larger campaign of intimidation started by governments in red states, and it shows that these threats are already working.
Lawmakers from the state have sent threatening letters to law firms and businesses that pay for their employees to travel out of state to get an abortion. They say that these businesses are helping people “kill their unborn children.”
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Conservative lawmakers have put forward bills that would make it illegal for companies to help workers get abortions or stop them from doing business in the state. For companies that have never spoken out about abortion rights, the threat of criminal charges or civil lawsuits may be enough. Polls have always shown that most Americans support abortion rights, and that number has gone up since the Supreme Court made abortion rights much harder to get in June.
After the Dobbs case, a number of companies said they would pay for their workers’ travel to get an abortion. This may not just be a matter of principle. Almost half of the people working in the US are women or can get pregnant, and more women than men have jobs that require a college degree.
People of reproductive age may give more thought to where they want to live or work if they think they might lose care, even if it’s just for a miscarriage. Some companies, like Google and Salesforce, have even offered to move employees to another state if they want to work there.
Conservatives are betting that the threat of legal liability is enough to get companies to change their minds, and that their worries about workers of childbearing age aren’t that big. For years, businesses tried to stay out of the fight over abortion. But it looks like that battle has found them.
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