February 1, 2023
Danielle Gray, Executive Vice President
Walgreens Boots Alliance, Inc.
108 Wilmot Road
Deerfield, IL 60015
Dear Ms. Gray:
Following your company’s recent announcement that it plans to obtain and sell
abortion pills using the mail, we write to advise you of the current law in this changing legal landscape. We know your company intends to comply with the law, and we know that duty requires a heavy lift for a nationwide company like yours that must keep apprised not only of federal law, but also of the laws of the various states.
As the principal legal and law enforcement officers of our 20 states, we offer you these thoughts on the current legal landscape.
First, many 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.” 18 U.S.C. § 1461. Although many people are unfamiliar with this statute because it has not been amended in a few decades, the text could not be clearer: “every article or thing designed, adapted, or intended for producing abortion … shall not be conveyed in the mails.” And anyone who “knowingly takes any such thing from the mails for the purpose of circulating” is guilty of a federal crime. Obviously, a federal criminal law — especially one that is, as here, enforceable through a private right of
action — deserves serious contemplation.
In December, the Biden administration’s Office of Legal Counsel encouraged
the U.S. Postal Service to disregard this plain text. But the text, not the Biden administration’s view, is what governs. And the Biden administration’s opinion fails to stand up even to the slightest amount of scrutiny.
The Biden administration’s opinion admits that the plain text of § 1461
prohibits using the mail to send or receive any drug that will be used for abortion.
Marshalling a series of increasingly strange antitextual arguments, the opinion concludes that § 1461 — contrary to its plain text — should be read to
prohibit distributing abortion pills through the mail only when the mailer or recipient specifically intends that the pill be used in violation of other laws.
We reject the Biden administration’s bizarre interpretation, and we expect
courts will as well. 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.
A future U.S. Attorney General will almost certainly reject the Biden administration’s results-oriented, strained reading. 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).
Second, like federal law, the laws of many states also prohibit using the mail
to send or receive abortion drugs. In Missouri, for example, it is unlawful to distribute an abortion drug through the mail.
Missouri law also prohibits unfair or deceptive trade practices — and trade practices that violate federal law necessarily are unfair and deceptive.
These state laws reflect not only our commitment to protecting the lives and
dignity of children, but also of women. Abortion pills are far riskier than surgical abortions, according to established scientific consensus: “Medication abortions were 5.96 times as likely to result in a complication as first-trimester aspiration abortions.” Abortion pills carry the added risk that when these heightened complications invariably occur, women suffer those harms at home, away from medical help. And finally, mail-order abortion pills also invite the horror of an increase in coerced abortions. When abortion drugs are mailed or consumed outside a regulated medical facility, the risk of coercion is much higher — indeed, guaranteed — because there is no oversight. Outside the regulated medical context, a person can obtain an abortion pill quite easily and then coerce a woman into taking it.
We emphasize that it is our responsibility as State Attorneys General to uphold the law and protect the health, safety, and well-being of women and unborn children in our states. Part of that responsibility includes ensuring that companies like yours are fully informed of the law so that harm does not come to our citizens.
Please do not hesitate to contact our offices if you have any questions or would like to make any assurances about your compliance with the federal law and the laws of our respective states.
Andrew Bailey, Missouri Attorney General
Steve Marshall, Alabama Attorney General
Treg Taylor, Alaska Attorney General
Tim Griffin, Arkansas Attorney General
Ashley Moody, Florida Attorney General
Chris Carr, Georgia Attorney General
Todd Rokita, Indiana Attorney General
Brenna Bird, Iowa Attorney General
Daniel Cameron, Kentucky Attorney General
Jeff Landry, Louisiana Attorney General
Lynn Fitch, Mississippi Attorney General
Austin Knudsen, Montana Attorney General
Drew Wrigley, North Dakota Attorney General
Dave Yost, Ohio Attorney General
Gentner F. Drummond, Oklahoma Attorney General
Alan Wilson, South Carolina Attorney General
Marty Jackley, South Dakota Attorney General
Ken Paxton, Texas Attorney General
Sean D. Reyes, Utah Attorney General
Patrick Morrisey, West Virginia Attorney General
Full text with citations and footnotes here.