NASHVILLE – Attorneys general in 20 states warned CVS and Walgreens Wednesday (Feb. 1) they will violate the law if they sell abortion pills through the mail.

CVS and Walgreens, the country’s largest pharmacy chains, announced they would carry and dispense the abortion pill, mifepristone, after the Food and Drug Administration (FDA) changed its rules in early January to permit its sale by retail pharmacies. Mifepristone is the first drug in a two-step process commonly referred to as medical or chemical abortion.

In their letters to the companies, the attorneys general rejected a December opinion by the Department of Justice (DOJ) that the U.S. Postal Service (USPS) can legally deliver abortion drugs. Federal law, however, “expressly prohibits using the mail to send or receive any drug that will ‘be used or applied for producing abortion,’” they said.

The letter from the attorneys general to CVS and Walgreens came a week after Sen. James Lankford, R-Okla., led more than 40 members of Congress in writing U.S. Attorney General Merrick Garland to denounce the DOJ’s memorandum. The Southern Baptist Ethics & Religious Liberty Commission (ERLC) joined a dozen other pro-life organizations in endorsing the congressional letter.

The ERLC also urged the chief executive officers of CVS and Walgreens in a Jan. 6 letter to repeal their decisions to dispense the abortion pill. 

The decisions by the FDA and the DOJ are the latest in a series of actions taken by President Biden and his administration in an effort to counteract the Supreme Court’s June 2022 reversal of the 1973 Roe v. Wade ruling. The high court returned abortion policy to the states by overturning Roe, which legalized abortion throughout the country.

“This moment should serve as confirmation on two fronts,” ERLC President Brent Leatherwood told Baptist Press. “First, that while states have an important role now in shaping abortion policy, the federal government can still make consequential decisions in this area. And second, the newfound role of states gives them the ability to stand for life like never before.

“In light of these twin realities, we endorsed this letter by Senator Lankford and affirm efforts, like this one from the attorneys general, to clearly state their opposition to the spread of abortion pills in their states” he said in emailed comments. “If we’re to establish a true culture of life, preventing the abortion pills from accessing our mailboxes is a much-needed first step.

Mifepristone, often known as RU 486 and authorized by the FDA under President Clinton in 2000, causes the lining of the uterus to release the embryonic child, resulting in his or her death. It is approved for use in the first 10 weeks of gestation. Misoprostol, a drug approved by the FDA to treat ulcers, is typically taken one to two days later and causes the uterus to contract, expelling the body.

Medical/chemical procedures as a percentage of all abortions have increased dramatically the last two decades. They rose between 2001 and 2020 from 5 percent of all abortions to 53 percent, the Guttmacher Institute reported Dec. 1.

The federal law in question – Section 1461 of the Comstock Act of 1873 – says “[e]very article or thing designed, adapted, or intended for producing abortion” cannot be legally delivered by the USPS. 

In its Dec. 23 memorandum, the DOJ’s Office of Legal Counsel (OLC) said it determined Section 1461 “does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully. [T]here are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law.”

Spearheaded by Missouri’s Andrew Bailey, the attorneys general told CVS and Walgreens officials, however, the OLC’s opinion “fails to stand up even to the slightest amount of scrutiny.” The OLC memorandum “admits that the plain text” of the law bars the use of the postal system to send or receive a drug that will be used for an abortion, they wrote. The opinion argues the law should be interpreted to ban the mailing of abortion pills “only when the mailer or recipient specifically intends that the pill be used in violation of other laws,” according to the letter.

“We reject the Biden administration’s bizarre interpretation, and we expect courts will as well,” they wrote.

The attorneys general also told CVS and Walgreens many states have laws prohibiting the use of the postal system to send or receive abortion pills.

In addition to Missouri, the other states represented by attorneys general who signed onto the letter were Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia.

Lankford, a Southern Baptist, sent a Jan. 25 letter to Garland that was endorsed by 21 other senators and 19 representatives and called for the memorandum to be “immediately rescinded” or rewritten “to articulate an accurate application of the law.” 

Though abortion pills may be legally used in some states, and federal law “does not currently explicitly prohibit” such drugs, federal law does ban “the mailing or shipping of such items,” the congressional letter said. “Despite attempts to downplay this action, the ‘mere mailing’ of these items is expressly what the law has prohibited for nearly 150 years.”

Both the attorneys general and members of Congress expressed concern in their letters for the safety of mothers.

“The reckless distribution of abortion drugs by mail or other carriers to pregnant [women] who have not been examined in person by a physician is not only dangerous and unsafe, it is criminal,” Lankford and his colleagues said. They demanded Garland “shut down all mail-order abortion operations” and hold those who violate the federal ban on mailing abortion drugs accountable.

Laws in 18 states mandate a healthcare professional be present to administer abortion pills, therefore prohibiting the use of telemedicine for medical/chemical abortions.

On its website, the FDA said mifepristone is safe when used according to its guidelines in the first 10 weeks of gestation. It admitted, however, the deaths of 28 women who took mifepristone had been reported since 2000. The deaths and other “adverse events” could not “with certainty be causally attributed” to mifepristone, according to the FDA.The Charlotte Lozier Institute (CLI) – a pro-life, research organization – reported in 2021, however, a new study it conducted found “chemical abortion is consistently and progressively associated with more postabortion [emergency room] visit morbidity than surgical abortion.” An analysis of Medicaid claims information from 17 states that pay for abortions showed the “rate of abortion-related ER visits following a chemical abortion increased 507%” between 2002 and 2015, according to CLI.

(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)