Walgreens set off a media firestorm last week when the company appeared to knuckle under a Republican-led attack on its sale of the popular abortion medication mifepristone. Walgreens issued a clarification earlier this week, but it may be too little, too late. The legal status of mifepristone is under attack by anti-abortion factions affiliated with religious extremism. Walgreens and other pharmacies will be forced to take a stand on their own principles until the legal clouds part – if they ever do.
The media storm churned up in the aftermath of a February letter penned by attorneys general from 20 Republican-controlled states — in which they warned both Walgreens Boots Alliance and CVS against selling mifepristone through the U.S. Postal Service.
The letter was intended to thwart a January finding issued by the U.S Department of Justice, which helps to protect access to medication abortion by mail. Specifically, it shields employees of the U.S. Postal Service from criminal charges related to state laws that outlaw or restrict the use of mifepristone.
As an additional protective measure, in January the U.S. Food and Drug Administration also established a new certification process that empowers pharmacies to continue selling mifepristone at their stores and through the mail.
The FDA first approved mifepristone in 2000, and some critics have charged that forcing pharmacies to undergo a new certification process is burdensome considering the drug has established a solid safety track record for more than 20 years. However, the certification process will help provide the Joe Biden administration with legal leverage to challenge a new lawsuit filed against the FDA by Alliance Defending Freedom.
ADF is the same conservative Christian group behind the successful Dobbs v. Jackson challenge to abortion rights in the U.S. Supreme Court. A decision on the FDA case is now in the hands of Matthew Kacsmaryk, a federal judge in Texas appointed by former President Donald Trump. Kacsmaryk is affiliated with a conservative Christian organization and has expressed support for restricting access to both abortion and contraception.
The Biden administration has signaled that it will appeal if Kacsmaryk decides to strip FDA approval from mifepristone.
In the meantime, Walgreens has apparently begun taking steps to protect itself against legal action in Republican-led states. On Feb. 21, Kansas Attorney General Kris Kobach issued a press statement declaring that Walgreens has agreed “not to mail the medical abortion pill into the state,” in addition to agreeing not to dispense mifepristone at its stores in Kansas.
That press release didn’t seem to create much of a media stir, and the issue seemed to fade from sight by the end of Feburary. However, the media spotlight finally struck home last Friday when CNN reported that Walgreens “will not distribute abortion medication in 20 states, bowing to pressure from anti-abortion lawmakers and lawsuits targeting the legality of medication abortion.”
Numerous other news organizations picked up the story, including National Public Radio. On March 4, NPR reported that “Walgreens won't distribute abortion pills in states where Republican officials have threatened legal action — including some places where abortion is still legal and available.”
In the same story, NPR quotes a March 3 statement it received from Walgreens, in which the company said it is still taking steps to sell mifepristone in “jurisdictions where it is legal and operationally feasible."
Walgreens clarified its position in a statement posted on its website on Monday. “We want to be very clear about what our position has always been: Walgreens plans to dispense mifepristone in any jurisdiction where it is legally permissible to do so,” the statement reads. “Once we are certified by the FDA, we will dispense this medication consistent with federal and state laws.”
“Providing legally approved medications to patients is what pharmacies do, and is rooted in our commitment to the communities in which we operate,” the company added.
That position seems reasonable enough for a leading U.S. corporate citizen faced with a legal landscape fraught with landmines. But the company may have waited too long to set the record straight.
California Gov. Gavin Newsom brought further attention to the issue earlier this week. In response to the March 3 CNN report, he posted the following message on his Twitter account on Monday: “California won't be doing business with @walgreens — or any company that cowers to the extremists and puts women's lives at risk. We're done.”
As of this writing, the actual impact on Walgreens operations in California is unclear. By the time Walgreens issued its updated statement on Monday, “a spokesperson for the governor said ‘all relationships’ between Walgreens and the state were now under review but declined to detail how business ties might change,” Reuters reported.
One outcome is perfectly clear, however. The legal cloud over abortion rights is impacting the business of health care in every state, Republican or not. To the extent that business leaders have supported Republican candidates for office, they have only themselves to blame.
Providing financial bandwidth for religious extremism to insert itself into positions of powerful public responsibility was never a good idea to begin with, and the fallout is spreading with every passing election. As the 2024 presidential election cycle gears up, business leaders have an opportunity to help banish governance-by-belief and restore informed, fact-based policymaking to the legislative bodies in all 50 states.
Tina writes frequently for TriplePundit and other websites, with a focus on military, government and corporate sustainability, clean tech research and emerging energy technologies. She is a former Deputy Director of Public Affairs of the New York City Department of Environmental Protection, and author of books and articles on recycling and other conservation themes. She is currently Deputy Director of Public Information for the County of Union, New Jersey. Views expressed here are her own and do not necessarily reflect agency policy.