Post-Roe America
FDA, Justice Department make it easier to obtain abortion drugs through pharmacies and mail
The Food and Drug Administration quietly finalized regulatory changes on Tuesday that allow retail pharmacies to dispense the abortion pill mifepristone, so long as it is prescribed by a certified health-care provider and the pharmacy meets certain requirements. Mifepristone, taken with the drug misoprostol to terminate pregnancies in the first trimester, was previously available only at specialty clinics and from certain mail-order pharmacies.
Most U.S. abortions are now done with pills rather than surgery, according to the Guttmacher Institute. Access to medication abortion has become a central focus of abortion rights and antiabortion advocates after the Supreme Court ended the federal right to abortion in June 2022. The FDA lifted bans on doctors prescribing abortion pills via telehealth consultations and home delivery of the medications in 2021.
The Justice Department's Office of Legal Counsel also issued a legal opinion Tuesday giving the U.S. Postal Service the green light to deliver abortion pills to states that have strict limits on abortion. While the OLC opinion offers limited assurance that people sending the drugs through USPS — or FedEx or UPS — aren't violating a 150-year-old federal statute called the Comstock Act, Politico notes, it "does not preclude state or local prosecutors from using state laws to charge people criminally for" or sending or receiving mifepristone or misoprostol.
Similarly, the FDA decision to allow pharmacies — bricks-and-mortar and online, local drugstores and national chains — to dispense mifepristone will be blunted by the "numerous state laws limiting abortion broadly and the pills specifically," The Associated Press reports. "Legal experts foresee years of court battles over access to the pills, as abortion-rights proponents bring test cases to challenge state restrictions."
Pharmacies may decide not to dispense mifepristone in those states, or any state.
An official with Danco, the company that produces mifepristone and sells it under the brand name Mifeprex, told The New York Times the company expects smaller independent pharmacies to dispense the pills before the larger chains. CVS and Walgreens said they are reviewing the FDA's regulatory change to decide how to comply in accordance with federal and state law.