COLUMBUS – Ohio Attorney General Dave Yost signed a letter sent to CVS and Walgreens arguing that the companies’ plans to send abortion pills through the mail is illegal under state and federal law.
Yost joined 19 other Republican attorneys general in sending the letters, written after President Joe Biden announced a new regulation that would allow retail pharmacies to dispense the medication in stores or through the mail, as more states restrict abortion. The U.S. Supreme Court overruled Roe v. Wade in June, returning decisions about abortion regulation to states.
The Food and Drug Administration had previously required mifepristone – the first of a two-drug regimen that’s used in many first-trimester abortions – to be dispensed only by clinics.
The attorney generals’ letter could set up a conflict with the Biden administration’s regulations that may decided by the courts.
The identical letters to CVS and Walgreens cite a federal law that says every article intended for inducing an abortion cannot be sent by mail. Violating the law is a federal crime, they wrote, and the pharmacies can be sued in civil court.
“Obviously, a federal criminal law – especially one that is, as here, enforceable through a private right of action – deserves serious contemplation,” the letters state.
It acknowledges Biden’s regulation changes but argues the federal law supersedes federal agency regulations.
“This is about the law, not politics,” said Yost’s spokeswoman, Bethany McCorkle, in a statement. “The president is not a member of Congress and cannot repeal the ban on shipping abortion pills through the mail. Ohio signed on to this letter because businesses need to understand there may be consequences under state and federal law.”
Furthermore, the letter says all 20 states have laws making it illegal to mail mifepristone.
The Ohio General Assembly prohibited the use of telemedicine for medication abortions in late 2018. In 2021, a state judge put it on hold.
It’s not clear whether CVS and Walgreens will even choose to dispense mifepristone in Ohio, considering the state’s laws.
“We are not dispensing Mifepristone at this time,” said Fraser Engerman, a Walgreens spokesman, in an email. “We 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.”
Over half of abortions provided in Ohio used medication in 2021: 10,240, mostly using mifepristone and misoprostol. The remaining abortions were done surgically that year: 9,152, according to Ohio Department of Health data.
During most medication abortions, a patient first takes mifepristone, which blocks the progesterone hormone, causing the uterus lining to thin and preventing the fetus from staying implanted and growing. Hours later, the woman takes misoprostol, causing the uterus to contract and expel the fetus through the vagina. Women usually can have the abortion at home without needing to go to a hospital or clinic, since most symptoms are similar to a heavy period.
It’s unclear whether telemedicine abortions are occurring in the state right now.
Planned Parenthood had been providing them prior to the 2018 law – but the medicine was not sent through the mail. Women would visit local health centers, where they would have their appointment with a Planned Parenthood doctor through telemedicine and get the abortion medication at the local health centers.
The FDA is not changing the regulations of misoprostol, which had always been easier to obtain and can be prescribed for other conditions in addition to abortion.
“Ohio Right to Life is thankful for Attorney General Dave Yost and the 19 other Attorneys General who united to not only uphold and protect our state laws but also federal law,” said Mike Gonidakis, the organization’s president. “This is what true pro-life leadership looks like, and we are proud to stand behind them.”