The attorneys general of 19 different states have sent a letter to Costco and Kroger warning the retail brands against sending abortion pills through the mail.
Last month, the U.S. Food and Drug Administration (FDA) announced updated rules that allow stores with pharmacies, such as Costco and Kroger, to dispense the abortion drug mifepristone through the mail.
While the FDA announcement may have suggested certified pharmacies could more readily dispense the abortion drug, the group of attorneys general argued that the FDA’s relaxed regulations are superseded by existing federal law that prohibits sending abortion medications through the mail system.
“[Y]ou may not yet be aware that federal law expressly prohibits using the mail to send or receive any drug that will ‘be used or applied for producing abortion,'” the attorneys general wrote in letters to executives at Costco and Kroger.
The warning letters were sent by attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia.
“Although many people are unfamiliar with this statute because it has not been amended in a few decades, the text could not be clearer: ‘Every article or thing designed, adapted, or intended for producing abortion … shall not be conveyed in the mails.’ And anyone who ‘knowingly takes any such thing from the mails for the purpose of circulating’ is guilty of a federal crime,” the attorneys general added.
The prohibitions the attorneys general cited have been in place for over a century, which were implemented under the Comstock Act of 1873.
Fox Business reported the 19 attorneys general sent the same warning letter to Walmart. Earlier this month, Fox News reported 20 state attorneys general sent similar letters to CVS and Walgreens.
Revised FDA Rule
The FDA has regulated access to mifepristone for years through its risk evaluation and mitigation strategy (REMS). In the past, the abortion drug could only be given in-person at a hospital, clinic, or medical office. In December 2021, the FDA announced it had revised the REMS rating for mifepristone, eliminating the requirement to administer the drug in-person at a medical facility.
On June 24, 2022, the U.S. Supreme Court overturned the landmark Roe v. Wade abortion case, giving individual states broader authority to regulate and restrict abortion. Several states have restricted abortion access since that Supreme Court decision.
President Joe Biden’s administration has criticized the Supreme Court’s decision, and activists have looked for ways to preserve access to abortions in various states.
Shortly after the Supreme Court’s decision, the U.S. Postal Service sent a letter to the Office of Legal Counsel (OLC) for the Department of Justice, asking for their opinion on whether the U.S. law prohibits mailing mifepristone. On Dec. 23, 2022, the OLC returned an opinion (pdf) that federal law does not prohibit mailing mifepristone “where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”
“Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully,” the OLC opinion read.
Following the OLC opinion, the FDA issued its revised REMS decision (pdf) on mifepristone, granting its permission to send the abortion drug through the mail.
In their letters, the 19 state attorneys general predicted the Biden administration’s interpretation of laws surrounding the mailing of abortion drugs will not stand up to scrutiny in court.
The American Civil Liberties Union (ACLU), which has advocated for greater access to abortions, said the FDA’s revised mifepristone REMS came at a “crisis moment for reproductive freedom, as access to abortion has plummeted nationwide.” The ACLU credited the FDA’s decision with repealing an “outdated and medically unnecessary” requirement for in-person administering of mifepristone, but said the agency still maintains some “medically unnecessary restrictions that impede patient access.”
Democrat Attorneys General Suing for More Access to Abortion Pills
While the Republican attorneys general have challenged the OLC’s opinion and the FDA’s decision to allow pharmacists to mail abortion drugs, a group of Democratic attorneys general filed a lawsuit (pdf) last week that would relax restrictions on mifepristone even further. That lawsuit was filed by the attorneys general of Washington, Oregon, Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Rhode Island, and Vermont.
The Democratic state attorneys general argued that while revised FDA regulations allow for sending abortion drugs in the mail, the FDA still heavily regulates who can fill prescriptions for the abortion drug.
“The REMS require burdensome documentation of the patient’s use of mifepristone for the purpose of abortion, making telehealth less accessible and creating a paper trail that puts both patients and providers in danger of violence, harassment, and threats of liability amid the growing criminalization and outlawing of abortion in other states,” the Democratic attorneys general argued.
A federal lawsuit filed in November by the conservative advocacy group Alliance for Hippocratic Medicine has accused the FDA of ignoring science and law to appease pro-abortion advocates when the agency approved mifepristone and misoprostol.
This lawsuit could conflict with lawsuits seeking to ease access to abortion medications and potentially see federal courts issue conflicting decisions.