On June 24, 2022, the United States Supreme Court issued a decision in Dobbs v. Jackson Women’s Health Organization and declared that the Constitution of the United States does not include the right to abortion. Since then, abortion protections across the country have been challenged and eroded. In Ohio, there is currently an injunction preventing the Human Rights and Heartbeat Protection Act (“the Heartbeat Bill”), which prohibits healthcare providers and medical professionals from performing abortion after the detection of a fetal heartbeat, from taking effect. This injunction will remain in effect until the courts determine the Constitutionality of the Heartbeat Bill.
On December 23, 2022, the Biden Administration released a slip opinion stating that federal law “does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully.” In other words, it is not illegal to send drugs that can be used to perform abortions through the mail, to States wherein abortion is legal. Following this opinion, CVS and Walgreens announced they would be seeking FDA certification to use the mail to sell mifepristone, a drug commonly used in abortions.
In response, on February 1, 2023, Missouri Attorney General Andrew Bailey sent letters to Walgreens and CVS warning the companies against this practice. The letters were co-signed by 19 Attorneys General from across the nation, including Ohio’s Attorney General Dave Yost.
The letters state that sending drugs used to perform abortions through the mail is a violation of federal law, and that AG Bailey intends to “enforce the laws as written.” The letters further state that reliance on the slip opinion is misplaced because the text of the law is what governs, not the view of the Biden Administration. The letters also suggest that some States may have laws that prohibit sending such drugs in the mail. Finally, the letters conclude by stating that part of the responsibility of being an Attorney General is “ensuring that companies like yours are fully informed of the law so that harm does not come to our citizens.”
A spokesperson for Ohio’s Attorney General Dave Yost commented that Yost’s signature on the letters is “about the law, not politics. . . .” Instead, “Ohio signed on to this letter because businesses need to understand there may be consequences under state and federal law.”
Currently, neither CVS nor Walgreens are dispensing mifepristone through the mail. The companies are seeking FDA certification and will then determine in which locations they will be able to dispense mifepristone.
A spokesman for Walgreens, Frasier Engerman, stated that the company is not currently dispensing mifepristone and that they “intend to become a certified pharmacy under the program, however we fully understand that we may not be able to dispense Mifepristone in all locations if we are certified under the program.”
The laws governing abortion rights are quickly changing. The Attorneys at Friedman Nemecek & Long, L.L.C., have the experience and resources to stay up to date on this rapidly evolving legal landscape. Our firm has partnered with Abortion Fund Ohio (AFO) to launch the Legal Access Program for abortion seekers and reproductive healthcare workers. Our attorneys not only have an in-depth understanding of the law, but also continually educate themselves on changes in the justice system.
Biden Administration Slip Opinion can be found here: https://www.justice.gov/olc/opinion/file/1560596/download
Letter to Walgreens can be found here: https://ago.mo.gov/docs/default-source/press-releases/2023-02-01-fda-rule---walgreens-letter-danielle-gray.pdf?sfvrsn=ff1e6652_2
Letter to CVS can be found here: https://ago.mo.gov/docs/default-source/press-releases/2023-02-01-fda-rule---cvs-letter-tom-moriarty.pdf?sfvrsn=d42cfc2b_2
Information on AFO’s Legal Access Program can be found here: https://www.abortionfundofohio.org/afo_launches_legal_access_program