With Roe v. Wade overturned, abortion is now banned or severely restricted in over 18 states, with more on the way. Now, right-wing efforts to ban abortion medication, are intensifying. Over half of all abortions in the U.S. use oral medication, rather than a medical procedure. The drugs used for medication abortions, mifepristone and misoprostol, have been F.D.A.-approved since 2000.
After the Supreme Court overturned Roe v. Wade, the U.S. Postal Service asked the Justice Department about an existing but very old federal law that makes it a felony to mail anything “designed … for producing abortion.” The law was part of the Comstock Act of 1873 and was never overturned, and became irrelevant as long as having an abortion was a federally protected right, which it was for 50 years after the 1973 Roe v. Wade decision. If people had a constitutional right to seek an abortion, Congress had no power to interfere with their ability to obtain one, even if by mail. The Comstock Act survived as a kind of fossil, still part of the formal law, but of no practical importance. Once Roe was overturned, that legal protection was erased, and now suddenly this ridiculous law matters again.
The Justice Department responded to the Postal Service inquiry by explaining that the Comstock Act does, in fact, allow the mailing of abortion pills since the sender “lacks the intent that the recipient of the drugs will use them unlawfully.” Their reasoning was that simply “mailing” the pills does not establish any intent for the recipient to use the medication unlawfully since no state has (yet) banned abortion in all circumstances. Many of the abortion bans in states are near-total bans but still have some very minimal exceptions, like when the life of the mother is severely at risk. And since abortion is still legal in some very minimal circumstances in states with the near-total bans, then a pharmacist could still lawfully mail the pills because they have no reason to assume that the pills would be used unlawfully. Even though the Justice Department assured the postal service that mailing abortion pills is still completely legal, this legal explanation certainly hasn’t been very reassuring.
After this was clarified, the F.D.A. announced that retail pharmacies could become certified to dispense abortion medication to patients, through the mail or in-person. But in response, Republican state attorneys general from 23 different states sent letters to Walgreens, CVS, and other big pharmacy chains, warning them that, as they saw it, the original federal law’s “plain text” that prohibits the mailing of any material “for producing abortion” was final, and they do not agree with what they called the Justice Department’s “bizarre interpretation.” The attorneys general warned that, regardless of the federal government’s view, they could and would enforce the law through civil litigation, implying they intended to block them and impose monetary fines. They also warned that many state laws already disallow using the mail to send and receive abortion drugs. And they are all signed on to current lawsuits to overturn the Justice Department’s interpretation and completely ban the abortion pill throughout U.S., even in states where it is legal.
In response to the Republican attorneys general, Walgreens quickly announced it would still seek certification to dispense abortion medication, but that it now plans not to mail the medication to people in the 23 states, some of which don’t even have abortion bans yet. Walgreens tried to defend its decision saying that it expects other pharmacies to do the same, but they just haven’t made their plans public yet. Whether that is true or not still remains to be seen.
Walgreens’ cowardly decision has resulted in calls to boycott the company. In California, Governor Gavin Newsom has opportunistically seized on Walgreens’ decision to paint himself as a champion of abortion access. The Governor announced that the state would cancel a contract with Walgreens and California’s prison health system, a contract worth about $54 million dollars. This is not nothing, but it is a drop in the bucket for Walgreens, which made $132 billion in 2022. And also, it does nothing to increase the availability of abortion medication. It’s no secret that Newsom likely intends to make a run for president at some point, and clearly he will jump at any chance to get national attention, and paint himself as a champion of reproductive health.
The reality is the Democrats have been cowards when it comes to abortion policy for years, and they continue to be so. The Democratic Party had nearly 50 years to make abortion access guaranteed to all without any restrictions, and they never did it. Even when they had a super-majority in Congress during the Obama administration, the Democrats just sat back and watched as access to abortion was slashed in states all across the country. The Comstock Act of 1873 was no secret and they could have had it overturned years ago but never bothered to do so. They constantly opposed making abortion access part of any federal health care policy. They have refused to use executive orders to guarantee access to abortion. They refuse to support universal health care for all, which could include full reproductive health care, and abortion access without restrictions.
Meanwhile, the Republicans have made their plans very clear. They will not stop at abortion bans. They will not stop at criminalizing women and pregnant people for having abortions, or at going after doctors and health care providers who perform abortions. They now promise they will go after pharmacists who dispense medication for abortions, which make up most of the abortions in the country. They are pushing to ban all medication abortions in the whole country. And they may even try to ban birth control next. And the Democrats have made it clear that all the they will do is perhaps denounce the Republicans at best.
But we need more than denunciations. These pending legal challenges to medication abortions are just another reminder that the future of reproductive health cannot be left up to the courts. Women and pregnant people can’t wait for more promises of legislation and further court appeals by the Democrats that never pan out. Access to abortion was never won through these tedious methods to begin with. And it couldn’t be any clearer that only a mass movement in the streets could be enough to guarantee abortion access going forward. We can’t wait anymore — people’s lives are at risk. The future of abortion access depends on ordinary people, and our willingness to organize and resist these attacks. Guaranteed access to abortion for all, without any restrictions — that, and much more — is what we have to fight for.
