By Shefali Luthra / The 19th
Medication abortion is poised to become more easily available in states where it is legal, after the country’s two biggest retail pharmacy chains said they will take steps to offer it in the wake of new guidance from the Food and Drug Administration.
The guidance, released Tuesday night, for the first time allows brick-and-mortar retail pharmacies that undergo government certification to dispense a medication known as mifepristone, one of two medications used to end a first-trimester pregnancy. Patients will still need a physician’s prescription.
The change, welcomed by the American College of Obstetricians and Gynecologists representing gynecologists and obstetricians, as well as by abortion rights organizations, could have a significant impact. Until December 2021, mifepristone could be dispensed in person only with the supervision of a certified clinician. In the past year, the federal government shifted to allow specialty pharmacies to mail mifepristone to patients who had a prescription. But it has not been available in average retail pharmacies.
In statements to The 19th, both CVS and Walgreens — the nation’s two biggest retail pharmacy chains — confirmed that they intend to undergo the federal certification process to provide mifepristone. But neither company would specify when it will begin or complete that process. Smaller pharmacies could also undergo the certification process.
And it is not clear how many retail pharmacies under either company will actually participate once the certification process is complete. A spokesperson for Walgreens said the company is still “evaluating our pharmacy network in terms of where we normally dispense products that have extra FDA requirements.”
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The impact is also likely to be limited to states where abortion within the first trimester — which ends at 13 weeks — remains legal. A spokesperson for CVS said the company will seek certification to provide mifepristone “where legally permissible,” and Walgreens said it will dispense the drug “consistent with federal and state laws.”
Currently, near-total or total abortion bans are in effect in 13 states; abortions are not permitted in Georgia for people past six weeks of pregnancy. Since Roe v. Wade was overturned this summer, thousands of people who live in states with abortion bans have been traveling to other parts of the country to get an abortion.
Neither CVS nor Walgreens responded to questions about whether their pharmacies would factor in patients’ home addresses when filling prescriptions for medication abortion — a meaningful concern for people who may travel from a state where abortion is illegal to seek care somewhere else.
Medication abortion dispensation has been subject to heated political debate, and that is unlikely to end here. “We might see additional litigation on this issue,” Jennifer Klein, director of the White House Gender Policy Council, told The 19th.
As of 2021, medication abortions have accounted for the majority of abortions in the country. Medication abortion is approved in the United States for up to 10 weeks pregnancy, though the World Health Organization endorses the practice for people through their 12th week.
The federal government made another move this week that could address how patients access medication abortion. On Tuesday, the Department of Justice issued a legal opinion arguing that the decades-old Comstock Act — which prohibits sending “indecent” or “immoral” material through mail — does not apply to mailing mifepristone or misoprostol, the other medication used in medication abortions. “There are manifold ways in which recipients in every state may lawfully use such drugs,” a DOJ memo argued.
In theory, that too could expand access to medication abortions, which some people have had forwarded through the mail to them in states with abortion bans. But it’s not clear whether the lack of federal prosecution would protect people if they are found to have violated individual state laws.
It’s also not clear what further action the White House or federal government might take on the issue. President Joe Biden has called on Congress to pass a law codifying the abortion rights protections formerly enshrined by Roe v. Wade. But such legislation is unlikely to pass, especially with Republicans holding a majority in the House of Representatives.
“It really is true you can’t replace a 50-year precedent with executive actions,” Klein said. But, she added, “we will continue to look for any and all executive actions that we think will continue to improve people’s access to abortion.”