The anti-abortion movement’s next radical legal argument

Originally published in Vox on March 20, 2023.

Until very recently, nearly everyone accepted some basic ideas about the American legal system. If a state passes a law, and that law is challenged in court, we should act as if that law is still in effect while the case works its way through the court system.

That changes only if a judge issues a “preliminary injunction” blocking the law while the lawsuit plays out or a “permanent injunction” to strike the law down. In that case, we all act as if the law is not in effect.

But in recent years, an aggressive wing of the anti-abortion movement has been working to challenge this broadly held idea of legality — a push that has attracted little notice, but is further complicating the debate over abortion access. Jonathan Mitchell — the architect behind Texas’s notorious SB 8 law that bans abortions after about six weeks of pregnancy, who is currently suing three women for allegedly helping a friend end a pregnancy — has been advancing the idea that abortion providers could still be held liable for pregnancies they help terminate under restrictive state laws, even if the law is blocked by the courts when the abortion occurs.

Prior to Dobbs v. Jackson, abortion rights lawyers beat back a host of abortion restrictions by arguing they were unconstitutional, violating the protections afforded by the Supreme Court’s 1973 decision. The end of Roe v. Wade has stripped Americans of a fundamental backstop to attacks on abortion access, meaning legal challenges to both state and federal abortion laws are being fought now in new waters.

The recent controversy surrounding Walgreens’ announcement to 21 Republican state attorneys general that it would not dispense medication abortion to their residents has centered primarily on four states that have abortion restrictions that are either blocked in court or pending in the legislature. A law the Montana legislature passed in 2021 barring telemedicine for abortion, for example, is currently enjoined. Walgreens consumers, Democratic politicians, and most journalists have said that as a result in those four states, at least for now, it’s legal for Walgreens to dispense the pills.

But this new push to hold providers liable for breaking laws that are enjoined by courts is making decisions from health care providers, including pharmacy chains, more complicated. Legal experts interviewed by Vox agreed it’s simply unclear right now how courts would rule on whether you can be successfully prosecuted for breaking a law under injunction, and the Supreme Court has disagreed on the question in the past.

The uncertain legal landscape notwithstanding, abortion rights advocates want companies to resist threats from Republicans and anti-abortion activists. “Through misinformation and intimidation, anti-abortion advocates are working to create an atmosphere of fear and confusion that goes against decades of scientific evidence with the goal of pushing abortion care further out of reach for many people, especially those from marginalized groups,” Elizabeth Nash, a state policy expert at the Guttmacher Institute, told Vox.

But for years, abortion rights groups have correctly argued that the public has underestimated the warnings and intentions of the anti-abortion movement. So to ask companies and individuals now to presume anti-abortion lawyers are bluffing about their novel, and even ridiculous, legal threats, or to assume conservative judges would not side with those lawyers as they have often in the past, requires a stretch of the imagination.

How the anti-abortion movement wants to weaken the protection of a court injunction

In 2018, anti-abortion lawyer Jonathan Mitchell penned a law review article arguing that if a court issues an injunction, it should be understood that those laws are still in effect, and anyone who violates those laws is not shielded from future prosecution.

“If a court were to dissolve the injunction, the executive would be free to enforce the statute again — both against those who will violate it in the future and against those who have violated it in the past,” Mitchell wrote.

That context has been largely missing from coverage of the abortion-pill wars. In the days following news about Walgreens, advocates for reproductive rights strongly suggested the pharmacy was needlessly capitulating to Republican political pressure. “California will not stand by as corporations cave to extremists and cut off critical access to reproductive care and freedom,” California Gov. Gavin Newsom had said. Writing for CNN, legal historian Mary Ziegler said Walgreens’ announcement shows “the mere threat of legal consequences counts for more with some in corporate America than the very real lives of the women.”

But the growing legal debate over injunctions adds more layers to Walgreens’s apparent corporate cowardice.

Mitchell’s argument about injunctions was mostly ignored until 2021, when Texas passed SB 8, a bill that allows private citizens to enforce the state’s six-week abortion ban through civil litigation and receive a cash bounty if they’re successful. The SB 8 law also includes a provision that says an individual cannot cite as a defense any court decision that was later overruled on appeal or by a subsequent court. Drexel law professor David Cohen called this SB 8’s “sword of Damocles” provision  hanging over the heads of abortion providers even in the event a court provides relief from an anti-abortion law.

Rachel Rebouché, a law professor at Temple University, said while it seems “common sense” that someone would not be retroactively liable for actions they took while a law was enjoined — as it would present due process concerns — the law is not “crystal clear, and the anti-abortion movement is really seizing on that.”

In 1982, in a US Supreme Court case, the justices disagreed over the liability protection afforded by injunctions. Two justices, Thurgood Marshall and William Brennan, argued an injunction offers “permanent protection from penalties for violations of the statute that occurred during the period the injunction was in effect.” But Justice John Paul Stevens, in his concurring opinion, questioned whether federal courts could really offer that. In 2004, law professor Vikram David Amar described the implications of Justice Stevens’ position as “quite scary.”

There are some hints that the current Supreme Court would not be receptive to radically changing the status quo on injunctions. In 2020, the Court decided a voting rights case where it vacated an injunction making it easier to vote in South Carolina, but also held that voters who cast their ballots while the injunction was in place would still have those votes counted. And in his concurring Dobbs v. Jackson opinion, Brett Kavanaugh wrote that he did not believe a state could “retroactively impose liability or punishment for an abortion that occurred before today’s decision.” Still, these are not firm assurances. “I have no doubt [Kavanaugh] would happily change his position in a fully briefed case on this issue if it suited him,” Cohen, of Drexel’s law school, said.

One reason the issue has remained unsettled for so long, University of Virginia law professor Doug Laycock told Vox, is that prosecutors typically just move on if a court vacates an injunction. “They say, ‘we won our point in court, we can enforce the law going forward, and that’s what we really care about.’”

The problem now, Laycock explains, is that feelings on abortion are so intense that prosecutors might indeed go after people following the overturn of an injunction, even though in the past they haven’t considered doing so. “We’re seeing doctors who will not rely on the exceptions in these new anti-abortion statutes because they think the pro-life prosecutors are crazy, and who knows what they might charge,” he said. “I think the same thing is going on with respect to pharmacies.”

Cohen, of Drexel, wrote in 2021 about how SB 8 puts lawyers who represent Texas abortion providers in a difficult position. “If you won an injunction, would you advise your clients to start performing abortions with the risk of substantial liability hanging over their head if the injunction is reversed any time in the next six years? That would be a hard enough question without the explicit language in SB 8. But with the clause highlighted here, it would likely be very risky.”

Caught in the middle of this legal and political tug-of-war are providers, who are left to play chicken with aggressive anti-abortion lawyers looking to test the limits of what we think of as “legal.”

Rebouché, of Temple’s law school, noted that when Mitchell first published his 2018 law review article, “people thought it was a little crazy.” But then SB 8 happened, and the Supreme Court let it stand. “This is just another example of the anti-abortion movement throwing everything at the wall and seeing what sticks.”


The sole US supplier of a major abortion pill said it would not distribute the drug in 31 states

Originally published in on March 17, 2023.

Earlier this month, Politico broke news that Walgreens, the nation’s second-largest pharmacy chain, assured 21 Republican attorneys general that it would not dispense abortion pills in their states should the company be approved to dispense them. The decision was met with sharp protest by Walgreens customers, abortion rights activists, and Democrats, who accused the pharmacy of caving needlessly to pressure.

But fear of state prosecution is not the only factor shaping Walgreens’ decision-making. Another previously unreported constraint on the company is that its sole supplier of Mifeprex — the brand-name drug for the abortion pill mifepristone first approved by the Food and Drug Administration in 2000 — circulated a list to its corporate clients in January naming 31 states that it would not supply the abortion medication to. Vox spoke with two sources who had reviewed that list recently.

The sole US distributor for Mifeprex is AmerisourceBergen, one of the largest pharmaceutical distribution companies in the world. (The federal government is currently suing AmerisourceBergen for allegedly distributing opioids while knowing they would later end up on the illegal market. The Pennsylvania-based company has denied this.) Back in January, AmerisourceBergen created its list of 31 states using as a source the website of the Guttmacher Institute, a reproductive research organization that tracks state abortion restrictions, according to sources with knowledge of the list’s origin.

The list’s existence underscores the precarious state of abortion rights in the US in the wake of Dobbs v. Jackson — the 2022 Supreme Court ruling that struck down Roe v. Wade, effectively leaving abortion rights to each state. Walgreens drew condemnation for saying it would not dispense abortion pills, even in states where it’s currently legal to do so. AmerisourceBergen’s list indicates another reason influencing Walgreens’ stance: a distributor — it’s the only one for this drug — had signaled that it would not supply pharmacies with abortion pills.

Walgreens and Danco Laboratories, the manufacturer of Mifeprex, declined to comment. A source with knowledge of the contractual agreement between Walgreens and AmerisourceBergen told Vox that the parties are legally barred from talking publicly about the supplier, but that advocates have been trying to persuade AmerisourceBergen to adopt a less risk-averse stance on abortion-pill distribution.

Lauren Esposito, a spokesperson for AmerisourceBergen, told Vox over email that the situation “is dynamic and ever evolving. Any information that you’re referring to from January is certainly out of date by now. Additionally, as I’m sure you can appreciate, for contractual purposes we are not able to discuss specific products.” The company later released an additional statement, emphasizing that AmerisourceBergen does not “independently decide what medications should be available to health care professionals as part of their treatment plans” and does “not make clinical decisions or values-based judgements on which FDA approved products it distributes.”

Vox asked Guttmacher about the supplier’s list and its reported use of the institute’s site as a guide for compiling the list. “We would like to understand what data AmerisourceBergen is basing these claims on, as we are not aware of any policies that would prevent the shipping of mifepristone to such a large number of states,” said Elizabeth Nash, a Guttmacher policy analyst. “Private companies should be extremely careful not to limit access to mifepristone in response to threats from anti-abortion groups or politicians.”

Abortion rights advocates and consumers responded with outrage to the Politico report, calling for a boycott of Walgreens until it reverses its stance. At particular issue is the fact that four states on Walgreens’ list — Montana, Kansas, Iowa, and Alaska — have restrictions on pharmacists that are blocked in court. California Democratic Gov. Gavin Newsom announced he would not renew a multimillion-dollar contract with the pharmacy chain to signal his disapproval.

Walgreens spokesperson Fraser Engerman maintained the company’s position hasn’t changed, and that they still intend to dispense mifepristone “in any jurisdiction where it is legally permissible to do so.”

In January, the Food and Drug Administration announced that brick-and-mortar pharmacies could apply for certification to sell abortion medication at their stores, a move hailed as an important step toward expanding access to the safe and effective drug that has become the most common method for ending pregnancies in the United States.

Representatives from CVS and Rite Aid, which like Walgreens said they would seek certification, have remained conspicuously quiet on the issue for the last two weeks, and did not return requests for comment. (No drugstore has yet been certified, and it is not clear how long the process will take.)

The ongoing debate over what pharmacies like Walgreens can and should do when it comes to dispensing mifepristone reflects the political challenge of navigating the patchwork of conflicting state abortion restrictions in the post-Roe era. With a bevy of new laws and litigation, individuals, abortion providers, and companies are left to make consequential decisions in a highly fraught and confusing legal environment — which, in the case of Walgreens and AmerisourceBergen, means inaction in the face of uncertainty.

Pharmacists are caught in the middle

Caught in the middle of this legal and political tug-of-war are abortion providers. While it’s easy for Democratic governors in states like Illinois and California to tell companies they should dispense medication abortion, it’s harder to insist that they should put their pharmacists at risk.

“Violating the has-to-be-done-by-a-physician requirements in some of these states is punishable by jail,” a Walgreens spokesperson told the New York Times. “In other states, it’s punishable by a civil fine, and in a number of them it’s punishable by licensing sanctions. And so these are restrictions that present real risks to pharmacists.”

The 21 states where Walgreens has said it will not dispense mifepristone fall into a few different categories, explained Nash of Guttmacher. Some have banned abortion entirely, while others have laws requiring physicians to dispense drugs in-person, or require in-person counseling and ultrasounds, making the prospect of dispensing mifepristone through a pharmacy impractical. And still others, like Alaska, should feasibly be able to dispense through a pharmacy, Nash said.

“Overall there’s a lot of confusion in the marketplace as pharmacies and pharmacists try and follow all the laws and regulation and litigation,” said Ilisa Bernstein, the interim CEO of the American Pharmacists Association. “It’s unsettled right now.”

Bernstein told Vox that beyond legal risks, members are grappling with new safety issues: “Pharmacy team staff safety is a concern, whether it’s getting into the pharmacy and going through people who may be demonstrating and picketing outside or in the pharmacy, where team members want to be sure they’re in a safe space when they’re working,” she said. Recently anti-abortion activists protested Walgreens’ annual shareholder meeting, casting drugstores as the new abortion clinic.

Next week the American Pharmacists Association is holding its annual meeting where hundreds of delegates from across the country plan to revisit the group’s policies on mifepristone and reproductive health care.

Regardless of what pharmacists want their group’s policies to be, they will remain bounded by the FDA’s Risk Evaluation and Mitigation Strategies (REMS) list, a restrictive designation the federal government places on mifepristone over the objections of groups like the American Congress of Obstetricians and Gynecologists. Pharmacists will also be circumscribed by the lawyers of their companies, and other actors involved in the medication abortion supply chain, like drug distributors and lawmakers.

Esposito, the spokesperson for AmerisourceBergen, told Vox, “We continue to make FDA-approved medications, including reproductive health medications, available to health care facilities and providers in all 50 states and territories that meet local, state, and federal requirements to distribute and dispense.”

But whether AmerisourceBergen will let Walgreens and other drugstores sell Mifeprex in all the locations pharmacies would be willing to dispense them from is another question.