Tester urges Walgreens, CVS to keep abortion medication in Montana

U.S. Sen. Jon Tester of Montana is calling out Walgreens pharmacies for not distributing medication commonly used for abortion in Montana even as a group of Republican attorneys general from 23 states threatened to take action against retailers, pharmacies and doctors that mail them.

The pharmacy chain said that a widespread misunderstanding has gotten it unfairly targeted. A spokesman for the company pointed to Montana law, which the company says limits how the medicine can be distributed. Because of that, Walgreens said that the pills must be acquired through a doctor or mid-level practitioner and should not be available in any pharmacy in the state.

However, a reading of the Montana Abortion Control Act doesn’t regulate how those medications may be acquired or even distributed, while the state’s top attorney remains mum.

Adding to the confusion is a legal threat, made by 23 Republican attorneys general, including Montana’s. Those attorneys general have threatened taking legal action against any pharmacy that would mail the medication, even as the Biden administration moves forward with plans to dispense abortion medication without a doctor.

Abortion is legal … with limits

In Montana, abortion remains legal and constitutionally protected. A 1999 Montana Supreme Court case, Armstrong vs. State of Montana, said that Montana’s constitutional right to privacy protects medical decisions between doctors and patients, and safeguards the right to an abortion up until the point of viability.

However, the Montana Abortion Control Act puts some restrictions on abortion providers and a mix of laws and lawsuits have changed the standards, including addressing whether mid-level practitioners can provide the services.

State law defines abortion to include the medication that would cause an abortion. It says that abortion must be provided by a doctor or a mid-level provider, like a nurse practitioner or physician’s assistant. However, it does not specify whether administering prescriptions must be done in person by a provider or whether a prescription written by a medical professional would qualify.

A lawsuit and a policy shift

Much of the confusion is being driven by a political battle in which states are redefining what is legal in the wake of the United States Supreme Court decision, Dobbs vs. Jackson Women’s Health, which sent control of abortion back to the individual states.

The Biden Administration has made two significant changes, including to emphasize that abortion pills like mifepristone and mistoporol can be obtained through the mail. That spurred on the attorneys general to threaten legal action, arguing that federal law prohibited sending the medicine by mail.

The Biden administration also began the process to make it legal for pharmacists and pharmacies to dispense abortion medication without the prescription from a doctor. Although the Biden Administration announced the policy, it’s still going through the regulatory process to make that happen, and a spokesperson for Walgreens said the change has not happened yet.

It issued this statement last week:

CVS and Rite Aid, two other national pharmacy retailers, said they would be joining along with Walgreens to begin distributing the medication if and when the FDA approves it.

However, the practice may be banned by the state’s abortion law, which requires a doctor or mid-level practitioner to dispense or write a prescription.

Walgreens lists 13 locations across Montana. CVS also lists 13 locations, according to an internet search.

Tester sent a letter on Monday to both national chains urging them to sell the medication in Montana where access to abortion is still legal.

Twenty-three attorneys general, including Montana’s Attorney General Austin Knudsen, signed onto a letter last month which was sent to the pharmacies that threatened legal action if the chains sold the pills, using the mail to deliver the medication. The letter, authored by Missouri Attorney General Andrew Bailey, pointed out that federal law makes distributing abortion medication by using the United States Postal Service illegal, contrary to a legal advisory sent out by the Biden administration.

Reached for further questions and clarification on Tuesday, Attorney General spokesperson Emilee Cantrell told the Daily Montanan, “Not interested in participating in your blog.”

Tester said that he’s concerned that the decision will mean that women, especially those in rural areas, will not have access to medications that are legal, or it will place a prohibitive burden on them in order to have access to the medication.

“Many Montanans, especially in rural areas, rely on businesses like Walgreens and CVS pharmacies to provide needed medications and health care advice,” Tester wrote in his letter.  “This decision will force women to decide between traveling extreme long distances or seek out illegal and potentially unsafe alternatives which could put their health and lives at risk. This is unacceptable, and I urge you to reconsider your policy.”