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In a flurry of letters, fight against distribution of abortion drugs heat up

by | Feb 7, 2023

By Dave Andrusko

“Survey shows widespread confusion over access to abortion medication” is the headline to a story written by Nathaniel Weixel for The Hill.

Let’s see how much confusion Weixel clears up and how much he adds to it. His source for the bulk of the article was a survey released Wednesday by KFF, formerly the Kaiser Family Foundation.

It’s likely true that “Nearly half of all adults in the U.S. are unsure whether medication abortion is legal where they live.” Same for the survey of 1,234 people which “found that in both states with abortion bans and those without, about half of adults are not sure about the legality of medication abortion.”

Weixel asserts, “The Biden administration has taken steps to increase access to the drug, but only in states where it is legal or not otherwise restricted.” 

This statement lacks context, at best. 

Last December, the US Department of Justice (DOJ) Office of Legal Counsel (OLC) released a memorandum permitting the mailing of abortion drugs. 

The memorandum makes clear that the Biden administration is not only determined to circumvent protective state abortion laws but also intend to ignore federal laws related to the mailing drugs. 

However, as a letter in opposition from 41 senators and house members explains

On January 3, 2023, the Department of Justice (DOJ) Office of Legal Counsel (OLC) released a memorandum regarding the application of longstanding federal criminal law prohibiting the mailing of chemical abortion drugs in interstate or foreign commerce by the U.S. Postal Service (USPS) as well as common carriers and express companies. These criminal prohibitions regarding the distribution of abortion drugs are enforceable. Nevertheless, OLC’s memo claims that these federal mail-order abortion laws do not prohibit the mailing of the abortion drugs mifepristone or misoprostol “where the sender lacks the intent that the recipient of the drugs will use them unlawfully.” The memo further claims that a lawful use for abortion drugs can be presumed even when these drugs are mailed into states that prohibit most abortions. However, neither Congress nor the courts have articulated such an interpretation of the law that radically departs from the plain text and clear meaning of the law.

In addition, a second separate letter signed by 77 lawmakers led by Sen. Cindy Hyde-Smith and Rep. Bob Latta admonishes the FDA for its lack of concern for women:

“Through its decision to permit no-test, mail-order abortions after a telemedicine visit, the FDA has abandoned its dual obligations to protect the public and vulnerable populations from harm and to comply with Federal law, including Federal requirements to protect patient safety and longstanding Federal criminal laws which expressly prohibit the mailing and shipping of abortion drugs.”

Meanwhile, in addition, attorneys general from 20 states, led by Missouri Attorney General Andrew Bailey, sent a letter on February 1 to CVS and Walgreens pharmacies. They wrote that distributing the abortion pill via mail could violate state and federal laws and there could be ramifications should they proceed to send abortion pills in this manner.

 “[M]any people are not aware that federal law expressly prohibits using the mail to send or receive any drug that will ‘be used or applied for producing abortion,’” the AGs wrote.

But the companies were not deterred. Rachel Tillman of the Associated Press wrote

In an emailed statement to Spectrum News, a spokesperson for Walgreens said the company is not currently dispensing mifepristone, although they are working to become eligible through an FDA-mandated certification process, requiring pharmacies to meet specific standards in shipping, tracking and confidentially storing drug prescribing records.

“We intend to become a certified pharmacy under the program, but we are working through the certification process, necessary training of our pharmacists, as well as evaluating our pharmacy network in terms of where we can dispense Mifepristone consistent with federal and state laws,” the statement read in part, adding: “We fully understand that we may not be able to dispense Mifepristone in all locations if we are certified under the program.”

Categories: Abortion Pill
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