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Walgreens internal memo says it is following the law on abortion pill distribution

Walgreens (WBA) is facing significant backlash after responding to a letter from more than 20 Attorneys General, telling them that it does not intend to dispense abortion pills in states via mail order where it is illegal. Meanwhile, in a memo to employees obtained by Yahoo Finance, CEO Roz Brewer tried to assure them that the company would, as it has done all along, consider selling mifepristone in states where it is legal.

In a separate, but similar, controversial letter to Kansas Attorney General Kris Kobach, Walgreens said it "does not intend to dispense mifepristone within your state and does not intend to ship Mifepristone into your state from any of our pharmacies. If this approach changes, we will be sure to notify you."

But the response, similarly sent to the 20 other AGs in Republican-lead states, according to a report by Politico, has spurred criticism ranging from calls to withdraw its decision from U.S. lawmakers and an all out boycott of the drug chain giant on social media.

Various reports have erroneously said that Walgreens will stop dispensing the drug. In reality, it has not begun that process. Furthermore, it would not be legally allowed to sell the drug in states with abortion bans in place.

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"What we're talking about hasn't even happened. This is more about how will this affect access in the future," said Alina Salganicoff, a senior vice president and the director of Women's Health Policy at Kaiser Family Foundation.

The FDA decision in January to allow retail pharmacies to apply for approval to dispense the pill, known generically as mifepristone — a process which could take several months— is the reason behind the backlash. During the pandemic, the Biden administration temporarily waived restrictions on mail order for the pill, and in January made the change permanent.

In the internal memo, Brewer expressed an understanding of the sensitive issue.

"I understand that our team members, patients and customers have deeply-held beliefs on this issue, and we must be very respectful of those beliefs," Brewer said, adding that other retailers like CVS (CVS) and Rite Aid (RAD) are also applying to distribute the pill.

"I want to be very clear about what our position has been all along: Walgreens plans to dispense mifepristone where it is legal, and not to dispense mifepristone where it is illegal," Brewer, a former executive of Walmart and Starbucks, said.

The FDA decision follows the overturning of Roe v. Wade in the U.S. Supreme Court last year. Mifepristone is one of two pills used for early-stage abortion, up to 10 weeks, which blocks a hormone that would allow the pregnancy to continue. It is considered an oral contraceptive but has been highly regulated by the FDA, requiring a doctor's consultation to use. The second pill is misoprostol, which is commonly used to prevent stomach ulcers, but also helps relax the uterus, and is already available at any pharmacy.

Legal issues ahead

The exchange with Kansas is a preview of what other pharmacies are set to contend with as a slew of court cases and legislation could impact their potential market share — and whether or not they end up dispensing it all.

This includes a case in Texas that threatens the use of mifepristone. The lawsuit alleges the FDA did not conduct proper testing of its use, and is one KFF and clinics like Planned Parenthood are monitoring closely.

While Kansas does allow the use of mifepristone for abortions, it has strict access rules. The state is currently in the process of banning tele-health abortion visits — which would take mail order off the table.

"At this time, we are working through the certification process, which includes the evaluation of our pharmacy network to determine where we will dispense Mifepristone and training protocols and updates for our pharmacists," the company said in its response to Kansas.

"Walgreens has not made any representations about using our mail order pharmacy business to dispense this drug," it added.

A Walgreens store is seen in Chicago, Illinois, U.S. February 11, 2021.  REUTERS/Eileen T. Meslar
A hasty decision on mifepristone? A Walgreens store in Chicago. REUTERS/Eileen T. Meslar (Eileen Meslar / reuters)

Of the 20 states which signed on the separate letter, abortion is still legal in a few — but some of those could face legal challenges or are at various stages of restricting access to abortion.

The 20 include Missouri, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia.

Florida, where abortion is legal, just introduced legislation Tuesday that would ban abortions after six weeks of pregnancy. This legislation mimics Texas's prior law, which was the strictest in the country short of a full ban, because it left women with an unreasonably tight window to find out they are pregnant and schedule the abortion. One study, for example, showed at least 33% of women find out they are pregnant after six weeks.

All told the situation remains dynamic, and any pharmacy, whether retail or online, is contending with the same uncertainty.

DiRx, an online pharmacy dealing in generics that is licensed in all 50 states and Washington, D.C., is doing the same thing Walgreens intends to do.

"This came up even earlier when the Roe v. Wade overturning was happening. We do ship oral contraceptives to states where it is legally OK to do so, without getting into the politics of it. Wherever there are question marks, we always make sure we check on the compliance aspects," said DiRx CEO Satish Srinivasan.

Walgreens is doing no different.

"Once we are certified by the FDA, we will dispense this medication consistent with federal and state laws. Providing legally approved medications to patients is what pharmacies do, and is rooted in our commitment to the communities in which we operate," the company said Monday.

Backlash

Despite the nuance involved, the response from Walgreens to the Attorneys General has caused significant backlash, with top U.S. lawmakers calling for a reversal of the decision as well as a boycott of the pharmacy. California Gov. Gavin Newsom is threatening to not do business with Walgreens.

California has been working on creating a generic drug manufacturing strategy for its residents, and the clash with Walgreens means it could be cut out of the distribution process if Newsom holds to the threat.

In addition, Walgreens is currently doing business with the state through its Medicaid and other government-run health services. It is not clear if Newsom's threat extends to the Medicaid program.

But the situation has still caught the attention of U.S. lawmakers and advocacy groups alike.

“This is the exact result anti-abortion actors want from their intimidation tactics. When politicians have the ability to interfere in the patient-provider relationship — in defiance of well-established science and medical evidence — people seeking access to timely, essential health care suffer," said Danika Wynn, vice president of abortion access at Planned Parenthood Federation of America, in a statement.

U.S. Sen. Elizabeth Warren (D-MA), meanwhile, expressed similar outrage on social media.

"It’s outrageous for MAGA extremists to intimidate pharmacies into refusing to dispense a medication that FDA deemed safe & effective over two decades ago," she said in a tweet, adding that all pharmacies should not be intimidated, including Walgreens, CVS and Rite Aid.

Follow Anjalee on Twitter @AnjKhem

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