FIRST ON FOX – More than a dozen GOP state attorneys general this week warned major retailers against the Food and Drug Administration’s (FDA) attempt to let pharmacies mail out the abortion pill, and said doing so would subject to legal action from the states.
Attorney General Andrew Bailey, R-Mo., along with 18 of his colleagues, sent a letter Monday to companies like Costco, Walmart, Kroger and others with pharmacies to spell out the legal repercussions of following the Biden administration's advice.
"We write to advise you of why the FDA’s invitation is unlawful and risky and to urge you to continue rejecting it," the AGs wrote. "[Y]ou may not yet be aware that federal law expressly prohibits using the mail to send or receive any drug that will 'be used or applied for producing abortion.'"
"Although many people are unfamiliar with this statute because it has not been amended in a few decades, the text could not be clearer: ‘every article or thing designed, adapted, or intended for producing abortion … shall not be conveyed in the mails.’ And anyone who ‘knowingly takes any such thing from the mails for the purpose of circulating’ is guilty of a federal crime," they wrote.
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"Obviously, a federal criminal law — especially one that is, as here, enforceable through a private right of action — deserves serious contemplation," they warned.
The Biden administration in early January developed a plan to change an FDA rule in a way that would allow companies with a retail pharmacy to apply for a certification to distribute by mail a two-step abortion-inducing drug.
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Prior to the rule change, mifepristone, the first pill used in the two-part abortion process, could be dispensed only by some mail-order pharmacies or by certified doctors or clinics.
If the FDA grants the certification, the pharmacy will be able to dispense the pill directly to patients upon receiving a prescription from a certified prescriber. But the attorneys general warn this change is an incorrect reading of what the law allows that would not stand up in court.
"We reject the Biden administration’s bizarre interpretation, and we expect courts will as well. Courts do not lightly ignore the plain text of statutes. And the Supreme Court has been openly aversive to other attempts by the Biden administration to press antitextual arguments," the AGs wrote.
"A future U.S. Attorney General will almost certainly reject the Biden administration’s results-oriented, strained reading. And consequences for accepting the Biden administration’s reading could come far sooner," the letters said.
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The attorneys general said abortion pills are "far riskier than surgical abortions," and cited a recent study by the American College of Obstetrics and Gynecologists that says that chemical abortions were 5.96 times as likely to result in a complication as first-trimester aspiration abortions.
"Abortion pills carry the added risk that when these heightened complications invariably occur, women suffer those harms at home, away from medical help," the AGs wrote.
"And finally, mail-order abortion pills also invite the horror of an increase in coerced abortions. When abortion drugs are mailed or consumed outside a regulated medical facility, the risk of coercion is much higher — indeed, guaranteed — because there is no oversight. Outside the regulated medical context, a person can obtain an abortion pill quite easily and then coerce a woman into taking it," the letters said.
This month, the AGs sent a similar letter to Walgreens and CVS — pharmacy providers who said they intended to use the FDA’s plan to sell the abortion pill. On Monday, they also sent a letter to RiteAid, which announced they also plan to obtain and sell abortion pills using the mail.
The letters were signed by AGs Andrew Bailey of Missouri and his counterparts from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, Ohio, Okahoma, South Carolina, South Dakota, Texas, Utah and West Virginia.
