The Washington PostDemocracy Dies in Darkness

Opinion California’s abortion-pill grandstanding is self-defeating

California Gov. Gavin Newsom on Jan. 10. (AP Photo/José Luis Villegas)
4 min

Republicans aren’t the only ones finding opportunities to bully private companies in culture-war battles. For the latest example, see California Gov. Gavin Newsom’s axing of a $54 million contract with Walgreens over abortion. “We will leverage our market power to defend the right to choose,” Mr. Newsom (D) said in a statement — even though Walgreens is helping expand abortion access in California. This overreach will invite conservative retaliation and further cleave the economy along political lines.

For Mr. Newsom, Walgreens’s offense isn’t breaking the law but following it — specifically, declining to expand the distribution of an abortion pill, mifepristone, in states where it might not be legal to do so. (Even in some states where medication abortion is legal, state laws limit the way the drugs can be delivered.)

File this in the category of no good deed going unpunished. After the Dobbs Supreme Court decision eliminating the constitutional right to abortion, the Biden administration sought to increase options for women by loosening restrictions on mifepristone. The drug had been available only through specialty offices and clinics, but the Food and Drug Administration in January announced a new program that would allow ordinary pharmacies to dispense the medication in person and by mail.

Walgreens was the first major chain to announce that it would seek to be certified under the expanded program. Others, including CVS and Rite Aid, have also said they’ll participate. This isn’t a likely cash cow for pharmacies — if anything, it could end up as a money-loser, given the need to retool computer systems to comply with requirements that dispensing information be kept confidential.

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Abortion rights advocates should want to encourage pharmacies to participate in the program. (Walmart, for example, hasn’t yet said whether it will.) Instead, they’ve turned Walgreens’s participation into a public-relations crisis for the company by claiming it is not going far enough.

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Here’s the situation the pharmacy chain faces: About a dozen states prohibit abortion in most circumstances. A host of others impose restrictions on dispensing abortion medications that go beyond the FDA’s. Iowa, for example, mandates that an abortion can only be induced by a physician. In Alaska, state law prohibits “pharmacy sales of abortion drugs directly to patients,” an Alaska Department of Law spokeswoman told the Anchorage Daily News.

After 20 Republican state attorneys general wrote to Walgreens and other pharmacies warning about potential legal consequences, the chain said it did not plan to distribute mifepristone in those states and clarified that it would do so “only in those jurisdictions where it is legal and operationally feasible.” Democrats and abortion rights supporters denounced the company for caving to GOP pressure, but Walgreens has said all along that it would abide by federal and state abortion laws.

CVS and Rite Aid have not said exactly how they will navigate states’ varying laws, but they will presumably quietly follow the policy Walgreens made the mistake of announcing. The alternative is to risk criminal and civil liability for themselves and their employees in red states. Pharmacists who violate state law could lose their licenses.

It’s possible that the federal rules supersede state requirements — litigation on that issue is pending in federal court in North Carolina. But in the interim, pharmacies and their employees are caught between two competing sovereigns.

For Mr. Newsom, the pharmacies’ legal difficulties represent a political opportunity. The governor’s announcement said the review of the state’s Walgreens contracts is “ongoing” — meaning that the company can bend the knee to Sacramento or risk further economic hits.

That’s an abuse of government economic power. Yes, states have different cultural values and the leeway to structure their own public contracts. But that discretion should not extend to effectively ordering the companies with which they do business to disregard other states’ laws. Reaching beyond their own borders that way undermines America’s federal system.

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