April 2, 2023

Editor’s Note: Mary Ziegler (@maryrziegler) is the Martin Luther King Professor of Law at UC Davis. She is the author of “Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment” and the forthcoming book, “Roe: The History of a National Obsession.” The views expressed in this commentary are her own. Read more opinion on CNN.



CNN
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In January, some pharmacy chains announced plans to distribute mifepristone to patients with prescriptions, following a US Food and Drug Administration policy change permitting the direct sale of the abortion drug by certified pharmacies.

Mary Zeigler

Just a few months later, one of the country’s biggest pharmacy retailers, Walgreens, abruptly announced that it wouldn’t distribute mifepristone in 21 Republican-controlled states. On Tuesday, Democratic Gov. Gavin Newsom said in a tweet that the state of California “won’t be doing business” with the chain, “or any company that cowers to the extremists and puts women’s lives at risk.” Walgreens told NPR in a statement on Friday that it’s working to sell the drug in “jurisdictions where it is legal and operationally feasible.”

One reason Walgreens’ move is so stunning is because the states where the company has decided not to make the drug available include several which have legalized abortion or protected it under their state constitution—including Florida, Kansas and Montana.

In Florida, Republican Gov. Ron DeSantis has pledged to sign a ban on abortion at six weeks, but nothing has crossed his desk yet and abortion remains legal in the state until 15 weeks. In Kansas and Montana, voters last year rejected ballot initiatives eroding abortion rights.

None of that seemed to make any difference to Walgreens. Nor did it matter that no lawsuit has been filed challenging the sale of the abortion medication. The warning of potential legal action was enough to make the company backtrack.

Walgreens’ decision sends a chilling message: the mere threat of legal consequences counts for more with some in corporate America than the very real lives of the women.

In a February letter sent to Walgreens and other pharmacies, a number of state attorneys general warned—falsely—that distributing abortion medication through the mail was illegal under federal law. So what exactly did they threaten?

They pointed to the Comstock Act, a 19th-century anti-vice law that “prohibits using the mail to send or receive any drug that will ‘be used or applied for producing abortion.’” Here it should be noted that the Biden Justice Department argues that the Comstock Act applies much more narrowly—only to drugs that are intended for criminal use—not to those received under bona fide prescription. The interpretation embraced by the attorneys general would seemingly ban all abortions, even surgical procedures, that involve an item or medication sent in the mail.

Of course, state prosecutors don’t enforce federal laws, but these attorneys general had a work-around. They threatened to go after Walgreens for alleged violation of state laws disallowing the mailing of abortion pills. But these provisions conflict with FDA policy. Separate lawsuits that have been filed in West Virginia and North Carolina argue that federal policy trumps conflicting state laws.

The attorneys general have a work-around for using the Comstock Act, too Many states have laws that bar deceptive trade practices, statutes that cover everything from false advertising to harassment by telemarketers. The attorneys general argue that because abortion is already illegal under federal law, selling abortion pills—no matter how it’s done or what state law says—violates these consumer protection laws.

Some conservative attorneys general have also argued that retailers who sell mifepristone could be prosecuted for violating federal racketeering laws. But federal racketeering law only allows state prosecutors to bring lawsuits for injuries to “business or property.” It’s hard to see how state attorneys general would even have standing to sue.

There has been a lot of talk by conservative prosecutors but no action so far, and little certainty that any of these prosecutions will go anywhere. Walgreens’ decision is striking for just that reason: it is a reminder of a broader campaign of intimidation started by governments in red states—and a sign that those threats are already working.

State lawmakers have sent threatening letters to law firms and corporations that reimburse their employees for travel out of state for abortion, accusing them of helping people “murder their unborn children.” Conservative legislators have filed bills that would criminalize corporations that help employees seeking abortion or bar them from doing business in the state. The threat of criminal charges or civil suits may be more than enough for corporations that have never spoken out on abortion rights.

Polls have consistently shown that most Americans support abortion rights, with an uptick since the Supreme Court eviscerated abortion rights in June. After the Dobbs decision, a number of corporations announced that they would reimburse their employees for travel for abortion. This may not be merely a decision rooted in principle: nearly half the US workforce is female or able to get pregnant, and women outnumber men in jobs requiring a college degree.

The threat of loss of care—including for pregnancy loss—may be an important factor for people of reproductive age in deciding where to live or work. Some companies, like Salesforce and Google, have even offered to relocate employees who wish to work in another state.

Conservatives are betting that the threat of legal liability is enough to frighten corporations into changing their minds—and that their worries about workers of reproductive age don’t run that deep. For years, corporations tried to avoid being drawn into the battle over abortion. But that battle, it seems, has found them.


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