Walgreens made national news recently when it announced that it would not distribute the abortion pill mifepristone in 21 conservative states, including in four where the drug is protected by state constitutional law. Just a few months earlier, the Food and Drug Administration had cleared the way for brick and mortar pharmacies to get certified to distribute the drug, and Walgreens, like CVS and other pharmacies, announced that it planned to seek certification.
Walgreens issued a statement clarifying that it would seek certification to dispense the drug where it is legal to do so, but that raised more questions than it answered: Notwithstanding its public declaration, Walgreens will not seek to dispense mifepristone in four Republican states where abortion remains legal.
Walgreens is not primarily worried about what consumers think or what voters decided in places like Montana and Kansas, states that just voted against antiabortion ballot initiatives. Its real worry is how conservative the courts have become and how a change in the White House could make things even worse.
The attorneys general for 21 conservative states threatened Walgreens with civil liability and criminal charges if it sold mifepristone. They warned Walgreens that the Comstock Act, a 19th-century law prohibiting the mailing of “obscene” material, made it illegal to mail abortion pills. The law’s list of banned items include things “designed, adapted, or intended for producing abortion.” But as the Justice Department recently asserted in a memo, the courts, Congress, and the Postal Service “have all settled” over the past century on an interpretation of that clause “that is narrower than a literal reading might suggest.”
The conservative attorneys general had other ideas. Federal anti-racketeering law, which targets organized crime, allows state prosecutors to bring lawsuits against those who violate the law, but that only works when prosecutors can show a “business or property” injury. It’s hard to see how that would happen if Walgreens sold mifepristone.
The attorneys general also argue that the sale of this drug violates state consumer protection laws on false advertising because mailing mifepristone violates the Comstock Act, and advertising anything illegal is deceptive by definition. But because their argument hinges on an interpretation of the Comstock Act that cuts against precedent, it stretches consumer protection laws usually designed to tackle topics like telemarketer harassment or false advertising, not pills recognized as safe and effective by the FDA. Even state laws banning the mailing of abortion pills might be preempted by federal law — a point raised in ongoing lawsuits in North Carolina and West Virginia.
Walgreens may well have been worried that state attorneys general would head to court soon, but a meeting with Illinois’s attorney general disclosed another worry: The company’s lawyers understand that if a Republican is in the White House, threats made about the Comstock Act could be followed up. A future Department of Justice could agree with the extraordinarily broad interpretation of the law advanced by the red states’ attorneys general.
How broad would that interpretation be? The attorneys general argue that the Comstock Act bars the mailing of anything that could produce abortion as well as anything “giving information, directly or indirectly” about how abortion can be obtained. This ignores decades of precedent that have narrowed application of the law to those who knowingly mail drugs for illegal purposes, not doctors or pharmacists filling legitimate prescriptions. But even if we accept the interpretation advanced by the attorneys general, it would seemingly sweep in much more than abortion pills: Any number of drugs can be or have been “adapted” for abortion.
So what can abortion-rights supporters do to create accountability for Walgreens or to prevent other pharmacies from making the same decision? Boycotts may be effective — that was the strategy used by abortion opponents to keep mifepristone off the US market for decades after it was available to patients in Europe. It’s wise to point out the weakness of the legal arguments made by the attorneys general.
There’s a reason that the attorneys general are talking about the courts and not the will of the people. There is no way that Congress would pass a law as sweeping as the Comstock Act today. The law is extraordinarily vague and possibly applies to a range of common and necessary drugs that are counter-indicated for use in pregnancy. It imposes serious punishment on people exercising what was long recognized as a federal constitutional right and is still protected as such in many states.
The Comstock Act runs contrary to popular opinion on abortion too: Most Americans favor abortion rights and oppose harsh criminal penalties, which Comstock extends beyond doctors to anyone mailing any drug that could even be adapted for abortion. Measures like it would fail in many conservative states, where antiabortion ballot initiatives have failed, or where voters favor at least modest exceptions to existing laws. The best way for the antiabortion movement to get what it wants is to rely on a GOP president and conservative judges, and Walgreens understands that all too well: Republican lawyers are hoping that the courts can either silently destroy abortion rights when voters aren’t watching or do so at least in ways that most Americans can’t understand.
The only logical progressive response to the intimidation tactics by the attorneys general has to be political. The Comstock Act, which also has provisions on birth control, could be repealed. If it is the linchpin of antiabortion litigation strategy, let Republican lawmakers defend it to voters. Let them explain why a law that no one has regularly sought to enforce in decades should be used to prosecute anyone sharing information about or mailing a drug that can be “adapted” for abortion. Let them explain how broadly that definition sweeps.
Voters can push for the repeal of the Comstock Act. They can hold accountable politicians who endorse the broadest interpretations of it. The conservative attorneys general may be right that they have an advantage when it comes to the courts, but the opposite is true in the court of public opinion, and it is time to make that clear.
Mary Ziegler is the Martin Luther King professor of law at the University of California Davis. Her latest book is “Roe: The History of a National Obsession.”