This Week in Abortion, Walgreens
This Week in Abortion, Walgreens
A collection of good reads, events from the week, and policy insights.
Welcome to your weekly roundup of good reads, legal updates, and legislative tracking on abortion. There are some major new legal cases that are worth your attention. We even moved the legal section up for lazy convenience. For our feature, we dive into the Walgreens controversy. Finally, there is a lot going on at the state level. If you are curious about something in your state that you don’t see here, contact us!
Good Reads
Similar to our note last week about towns bordering states with abortion bans, the NY Times featured the state of North Carolina, which has seen a jump in procedures but is also considering moving from 20 weeks to 12 weeks. And the data folks at FiveThirtyEight and Caitlin Myers produced some cool interactive maps showing what would happen if more border states started enacting bans.
NPR wrote an interesting modern take on government employees refusing to uphold laws directly related to their jobs, highlighting District Attorneys in the more liberal cities in Texas who refuse to prosecute any abortion-related cases. While we applaud these employees, it is worth remembering that selective application and enforcement is a tactic used by both sides of any issue - think school integration in the 1950s through 1970s. Or, remember that clerk who wouldn’t marry same-sex couples?
A new analysis of Georgia’s 6-week (heartbeat) abortion ban by the Journal of the American Medical Association found that only 11.6% of abortions provided in Georgia from 2007 to 2017 would meet the eligibility requirement for abortion care under the current Georgia law.
Gestational age starts on the first day of your last period (when you are very clearly not actually pregnant). So, very few women actually know they are pregnant by the arbitrary 6-week date, especially when a “normal” menstrual cycle is considered up to 35 days and millions of women have cycles outside the “normal” range.
A super in-depth and fascinating read on the overlap between the election denier and anti-access agendas. A fun read for any policy wonk subscribers!
Legal Updates
In a potentially precedent-setting lawsuit, a man in Texas is suing three friends of his ex-wife for helping her get an abortion. This is the first case brought to court under the law which allows criminal punishment for anyone who “furnishes the means” to an abortion, which predates the overturning of Roe v Wade. The case is based on screenshots of text messages the women exchanged.
Also in Texas, five women are suing the state. We are really excited about this one. Not for the women, they got a decidedly shit deal. Texas’s ban prevented them from getting abortions even though pregnancies endangered their lives. We are excited because this lawsuit is the first that takes these bans out of the abstract and puts their effect right in your face. We need more suits like this. As Kate Zernike at New York Times points out, it was lawsuits like this one that moved the majority to action in Ireland and South America.
A judge in Montana determined the state’s parental consent laws unconstitutional this week, though parental notification is still in place for now. The state legislature is in session and their deadline to file bills is next week, so we expect to see a flurry of activity in the days to come. Perhaps they will take a page from Idaho, whose legislature moved forward a bill this week making it illegal to transport a minor to an abortion without parental consent.
Events in the News
In our continuing coverage of the Wisconsin Supreme Court race, the Milwaukee Journal Sentinel (behind a paywall) released the contents of a since-deleted blog from Wisconsin Supreme Court candidate Dan Kelly. Kelly takes a hardline on abortion, which he said only serves, “to preserve sexual libertinism.” If you live in Wisconsin and don’t have access to the article, let us know!
We’re not sure there has ever been a ballot initiative campaign quite like this. A pro-access coalition in Missouri filed eleven separate ballot initiatives each of which would enshrine the “right to reproductive freedom” in the state constitution, though to different levels. According to the Springfield News-Leader, at least one of the petitions spells out 24 weeks as the limit; another requires parental consent - restrictions that would be enshrined in the constitution. This is an anxiety-producing strategy. Ballot initiatives are HARD and Missouri is not an access-friendly state. Hopefully, some method will appear in this madness soon.
Remember some of the challenges outlined about crisis pregnancy centers last week? Massachusetts’ House approved a $1 million public education campaign sharing the dangers of these crisis pregnancy centers. This is great news! And likely to pass - previous Republican Governor Baker vetoed the same bill last November, but we expect Democrat Governor Healey to be supportive. It’s a good thing these bills are moving forward, as Google is apparently violating its own policies and continues to promote misleading ads for crisis pregnancy centers, particularly in low-income areas.
The Arkansas legislature failed to move forward with a bill that would add an exception to their full abortion ban if the fetus has a fatal anomaly and is incompatible with life. This means women who face similar situations as Mollie did, would not be able to terminate their pregnancies early and would have to carry and deliver a baby who they know would die upon birth (at least within their home state).
New Mexico’s legislature voted to block local governments from placing restrictions on abortion and gender-affirming care. Meanwhile, Texas border towns have been pushing back against new facilities.
Feature - Walgreens
We got a lot of questions about whether and how much to read into Walgreens’ refusal to distribute mifepristone. We will do our best to break it down here. Spoiler…Chicago is the land of Walgreens, there are literally five within a fifteen-minute walk of Rachel’s home, but after writing this, she moved her scripts to a different pharmacy.
What Happened
In January, the FDA approved mifepristone for distribution by retail pharmacies. But, it was always unclear how available mifepristone would be at pharmacies in states that ban abortion. Then, 21 Attorneys Generals informed Walgreens and CVS that - according to their interpretation- sending abortion medications through the mail is illegal. You know, they sort-of-kind-of said they’d sue.
Last week, Walgreens let those AGs know that it would not distribute the drug in those states - including Iowa, Alaska, Kansas, and Montana, where abortion is legal. It also appears they will not distribute the drug by mail anywhere. This week they issued a clarifying statement that did not clarify much of anything. Meanwhile, other pharmacies have remained silent on what they will do in response to the AG letter.
The Legal Landscape
We are not lawyers. But we asked a couple to weigh in on whether or not Walgreens was being overly conservative in its response to the AG threats. Based on their terrified looks, we can confidently say it’s a murky issue. Chris Rowland’ at The Washington Post and this PBS interview wade into some of the legal details.
The AGs’ letter says the distribution of abortion medication through the mail is illegal, even though the Biden administration says it’s not. Then there are the conflicting state and federal laws. Not to mention laws that allow pharmacies to get sued in civil court. Needless to say, it is confusing and there is not a singular “right” answer from a legal standpoint.
Illinois’s AG Kwame Raoul told Politico, “[Walgreens is] in a landscape where they don’t know who the next administration may be…If, God forbid, one of these extreme candidates were elected president, they could be subject to not only civil but criminal action.”
That’s exactly the point. Walgreens could get taken to court in some form and lose, but it’s also possible that they could win, especially in the states where abortion is legal. One Iowa law professor told Rowland that their state law permits pharmacies to distribute the pill. And, in Alaska, nearly two-dozen legislators wrote a letter urging Walgreens to ignore their AG’s letter.
Walgreens took a conservative approach in responding to a legal threat. That was a choice. And it’s a choice many other companies will face on a host of other abortion-related issues for the foreseeable future. Companies watch each other for cues so Walgreens’ move sets a tone. Now, it is the court of public opinion that will influence what other pharmacies and companies do when facing these threats.
The Backlash
We are not people who default to public protest, after all we are both practiced bureaucrats. And, we hate the state-vs-state nature of current abortion policy. But, the old adage is true - the squeaky wheel gets the grease. Anti-access protestors have been picketing pharmacies and AGs have been threatening bottom lines. The pro-access community has to show that it can be just as loud. Thankfully, that looks like it’s happening.
California was the first to push back, saying it would not renew its $54M contract with Walgreens to supply medicine to its jails and prisons. This is a great example of a way to push back without harming vulnerable populations (for example by cutting vaccination partnerships). State supply contracts can be a major revenue source. Other states and local jurisdictions should make it clear that they will not renew contracts with pharmacy partners who aren’t at least distributing mifepristone where abortion is legal. (Looking at you, Gov. Pritzker.)
There are also calls for shoppers to move their business to other companies. We don’t actually want Walgreens to fail. From a macro policy lens, they play a vital role in the healthcare system, in some places the only pharmacy for many miles. But, we do want them to know that their decision to rather conservatively insulate themselves from legal risks costs something at the counter.
Although Walgreens hasn’t changed course, as of Friday the stock price was down by 7.7%, underperforming the market. So, these actions are hitting the company where it hurts. Now it’s a question of whether Walgreens will wait them out and if other pharmacies take note. The cynic in us says now is a great time to invest in Walgreens. But our better natures prevail. Mollie, an ardent Illinois lover who strives to support Illinois-based companies, divested from her Walgreens assets.
Now, get off your butt and change your pharmacy!