A group of 23 state attorneys general have written to CVS and Walgreen, expressing their support for the sale of two abortion pills by mail.

The drugs, mifepristone and misoprostol, require a prescription but are considered safe for performing an abortion at home. The pharmacies’s decision will provide millions of people access to the critical – and at times lifesaving – reproductive care, Oregon Attorney General Ellen Rosenblum, said in a letter sent Thursday to the two pharmacy chains. She and the attorneys general of California and Washington spearheaded the effort, with attorneys general from Arizona, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island and Vermont signing on.

Last month, the two companies announced their decision after the Food and Drug Administration enacted a rule change that will allow retail pharmacies to dispense mifepristone to patients with a prescription. They are now available through Planned Parenthood and other providers.

Mifepristone and misoprostol are commonly used for abortions and other purposes including the treatment of miscarriages and gastric ulcers. The FDA has approved their use for more than 20 years. 

“Mifepristone and misoprostol are safe, effective medications that are prescribed by doctors for many purposes, including abortion,” Rosenblum said in a statement. 

Walgreens and CVS will need to obtain a certification from the FDA first. 

On another front, a closely watched federal court decision is pending in Texas, where a lawsuit seeks to overturn the FDA’s approval of mifepristone. Oregon’s senior U.S. Sen. Ron Wyden urged the federal agency and Biden administration to ignore an injunction that would block the drug. Wyden, a Democrat, said in a speech on the Senate floor Thursday that the potential injunction is an “affront to the Constitution and to the rule of law in the United States of America.” 

States have become divided over reproductive rights since the U.S. Supreme Court last year overturned Roe v. Wade – and effectively empowered legislatures to put more abortion restrictions in place. 

A different group of 20 attorneys general, led by Missouri, also wrote to the pharmacy chains, warning that they will violate federal law if they dispense the medications by mail. 

Besides Missouri, the other attorneys general who signed onto that letter are from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia.

Rosenblum criticized that step – and their legal reasoning. Her group’s letter said the anti-abortion coalition is  misinterpreting the law – and ignoring court precedent that has found it’s not a violation of the law to mail those drugs because they are approved for legal abortions. 

“Attorneys general in anti-abortion states are trying to scare retail pharmacy chains away from offering these critical medications,” Rosenblum said. “But in a time when reproductive health care is under attack, our group of 23 attorneys general strongly believe we should be encouraging companies and providers to offer easily accessible, safe, and confidential health care as broadly as possible.”

Oregon has 79 Walgreens and 28 CVS locations.

Federal lawsuit seeks ban 

The FDA’s 2000 approval of mifepristone faces a challenge through a federal lawsuit in Texas. The case, filed in November by the conservative advocacy group Alliance Defending Freedom, alleges the drug has health risks for patients and should be banned.

U.S. District Court Judge Matthew Kacsmaryk, nominated to the bench by former President Donald Trump, is expected to issue a ruling on the case, which could eventually make its way to the U.S. Supreme Court. 

Wyden on Thursday warned that an adverse ruling could impact access to the medication throughout the United States with an injunction.

Wyden, in his speech, urged the FDA and President Joe Biden to ignore any injunction.

“Here’s what must happen if and when Judge Kacsmaryk issues his nationwide injunction halting access to mifepristone,” Wyden said. “President Biden and the FDA must ignore it. Don’t give in to the ‘court washing.’. Protect the fundamental rights and well-being of all women in America.”

Wyden added: “The FDA should go on just as it has for the last 23 years since it first approved mifepristone. The FDA needs to keep this medication on the market without interruption regardless of what the ruling says. Doctors and pharmacies should go about their jobs like nothing has changed.”

To defend his stance, Wyden invoked the history of President Abraham Lincoln, who called on people to ignore the Dred Scott ruling, which held that Black people could never be U.S. Citizens with constitutional rights.

Wyden said the answer is to ignore the ruling “at least until there’s a final ruling on the underlying matter by the Supreme Court.”

“I don’t say this lightly,” Wyden said. “In fact, I’ve never said it before.”

Oregon Capital Chronicle

Oregon Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Lynne Terry for questions: info@oregoncapitalchronicle.com. Follow Oregon Capital Chronicle on Facebook and Twitter.

Ben Botkin covers justice, health and social services issues for the Oregon Capital Chronicle. He has been a reporter since 2003, when he drove from his Midwest locale to Idaho for his first journalism job. He has written extensively about politics and state agencies in Idaho, Nevada and Oregon. Most recently, he covered health care and the Oregon Legislature for The Lund Report.