Democratic state Attorneys General send letter to CVS, Walgreens opposing Republicans
"We reject the Biden administration’s bizarre interpretation, and we expect courts will as well," read the anti-abortion states letter authored by Missouri Attorney General Andrew Bailey. "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."
Following a letter sent by a group of Republican state attorneys general, including Georgia’s Chris Carr, to two major pharmacies outlining federal law that prohibits mailing abortion pills, a coalition of Democratic state attorneys general last week sent their own letter commending CVS and Walgreens pharmacies for their plans to offer two types of medication used to bring about a medical abortion.
The Feb. 16 letter, led by the California, Oregon and Washington attorneys general, was sent to Danielle Gray, Executive Vice President of Walgreens Boots Alliance, and Sam Khichi, Executive Vice President of CVS Health, and commended the two companies on their plan to fill prescriptions for mifepristone and misoprostol.
“It is our understanding from your public statements that while you are committed to making these medications available as broadly as possible in your pharmacies in response to the FDA’s recent actions, you are equally committed to doing so in compliance with both state and federal law,” read the letter, signed by 23 attorneys general. “To the extent the anti-abortion states’ letter implies otherwise, that is simply not accurate.”
The letter went on to say that the anti-abortion states’ letter makes a misguided claim that distribution of the two drugs is impermissible under a law that dates back to the 1870′s called the Comstock Act.
“This claim is misguided and disregards over a century’s worth of legal precedent,” stated the letter. “As extensively detailed in the Office of Legal Counsel’s recent memorandum opinion, since the early twentieth century, federal courts have repeatedly and consistently held that the Comstock Act does not categorically prohibit mailing items that can be used to terminate a pregnancy, and does not apply unless the sender intends the recipient to use them unlawfully.”
The letter in support of CVS and Walgreen’s move was signed by the attorney generals from Arizona, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island, and Vermont. All attorneys general—except acting Pennsylvania Attorney General Michelle A. Henry—are Democrats.
“In short, the antiquated legal theory the anti-abortion states attempt to revive is meritless and has been repeatedly and consistently rejected,” stated the letter.
The letter supporting the move by the pharmacies followed another issued by Missouri Attorney General Andrew Bailey and other anti-abortion states which included attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia—all Republicans.
The anti-abortion states’ letter cited federal law 18 U.S.C. § 1461 and said that it “expressly prohibits using the mail to send or receive any drug that will ‘be used or applied for producing abortion.’” The letter further stated that “the Biden Administration’s Office of Legal Counsel encouraged the U.S. Postal Service to disregard this plain text.”
“We reject the Biden administration’s bizarre interpretation, and we expect courts will as well,” read the anti-abortion states letter dated Feb. 1. “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.”
In making that statement, Bailey’s letter cited two U.S. Supreme Court opinions—Alabama Ass’n of Realtors v. Dep’t of Health and Human Servs. and Terry v. United States.
“A future U.S. Attorney General will almost certainly reject the Biden administration’s results-oriented, strained reading,” stated the letter. “And consequences for accepting the Biden administration’s reading could come far sooner. Section 1461 can be enforced not only by the U.S. Attorney General, but also through civil litigation by State Attorneys General and private parties under § 1964(c).”
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