Walgreens and CVS, the two largest drugstore chains in the U.S., told CBS MoneyWatch they intend to sell the abortion drug mifepristone after the Food and Drug Administration reversed a rule that had prevented retail pharmacies from dispensing the medication.
The FDA on Tuesday announced it would allow pharmacies to dispense mifepristone to patients with a prescription for the drug, which is one of the two medications needed to induce a so-called “medication abortion.” The rule change also comes as the Justice Department recently gave the green light to the U.S. Postal Service to continue delivering abortion medication by mail, including, notably, in states that have passed restrictions on abortion services since the Supreme Court last year stuck down the 1973 Roe v. Wade decision.
Previously, mifepristone could only be prescribed by some mail-order pharmacies and certified physicians, which experts said had created barriers to access. The FDA on Tuesday also officially removed a requirement that the drug be dispensed in person.
The second drug used in so-called medication abortions, misoprostol, is also used to treat stomach ulcers and thus is more easily accessible from pharmacies than mifepristone.
The two drugs are needed in combination to induce medication abortion, which is considered safe and effective for up to 10 weeks of pregnancy and now accounts for more than half of abortions in the U.S., according to the Guttmacher Institute, a reproductive rights organization.
The changes were hailed by supporters of abortion access, which has been restricted or banned in more than a dozen states after the Supreme Court overturned Roe v. Wade.
“We are moving what had been a very niche product in a closed-loop system into the mainstream,” said Kirsten Moore, director of the EMAA Project, which advocates for access to medication abortion. “I am thrilled beyond words that major chains are saying we will treat this like other FDA approved medications.”
The change should increase access to the pills, Dr. Kristyn Brandi, an abortion provider in New Jersey, told CBS News in reference to the new FDA rule. Doctors should be able “to prescribe the medication, just like you can get other medications prescribed,” she said.
Roadblocks in some states
Abortion medication drugs may not legally be sold in states that have banned their sale, or where other laws restrict their availability, experts said. That means people in states with abortion bans won’t be able to buy the drugs at local pharmacies, although they may be able to circumvent that by driving to another state or receiving the pills through the mail.
In a statement to CBS MoneyWatch, CVS said it plans to “seek certification to dispense mifepristone where legally permissible.”
Walgreens said in a statement that it intends “to become a certified pharmacy under the program.”
“We are working through the registration, necessary training of our pharmacists, as well as evaluating our pharmacy network in terms of where we normally dispense products that have extra FDA requirements and will dispense these consistent with federal and state laws,” the pharmacy chain added.
Anti-abortion advocates condemned the FDA rule change, with Susan B. Anthony Pro-Life America saying in a statement that the Biden administration “values abortion industry profits over women’s safety and unborn children’s lives.”
The rule changes are part of a rapidly shifting landscape for reproductive rights in the U.S. On Thursday, for example, the South Carolina Supreme Court struck down a ban on abortion after cardiac activity is detected — typically at about six weeks — on grounds that the restriction violates the state constitution’s right to privacy.
The new FDA rule comes after the Justice Department last month delivered an opinion requested by the Postal Service on whether the agency was breaking the law by delivering abortion pills in all 50 states.
At issue is the “Comstock Act,” an 1873 law that prohibited the mail service from carrying any “article or thing designed, adapted or intended for producing abortion.” (The Comstock Act — a Victorian-era anti-obscenity law — also barred the mail service from delivering “very obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance.”)
The agency’s December 23 opinion noted that the drugs used for medication abortion can be used for several purposes, including legal abortions, and so it can’t be assumed that either the sender or recipient intends to use the drugs illegally.
“Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully,” the Justice Department’s opinion stated.
The guidance is “a monumental step forward for access, codifying that abortion pills can indeed not only be mailed, but also delivered and received, in all 50 states,” Stephanie Estey, co-founder of women’s health platform TBD Health, told CBS MoneyWatch.
The opinion also means the USPS can’t be sued for delivering such medications, she added.
Online health care providers, including some located overseas, saw an increase in demand from U.S. patients requesting access to medication abortion following the overturn of Roe v. Wade. One startup, called Choix, is providing abortion pills before they are needed in states where the procedure is legal and they are licensed to operate, such as California, Colorado and Maine.
“If the DOJ had found differently, then this critical lifeline to safe abortion care would have come to a halt,” Estey said. “Despite pervasive bans on abortion in countless states across the U.S., pregnant people in even the most conservative states can now rest assured that their order for abortion medication will be delivered.”