Legal uncertainty threatens abortion pill access in Nevada

Sen. Catherine Cortez Masto (D-Nev.) is condemning one of the nation’s biggest pharmaceutical wholesalers — AmerisourceBergen — over what she said is its refusal to distribute abortion pills to retail pharmacies in her state.

The state’s senior U.S. senator said the company’s government affairs and legal teams informed her staff on Friday that Nevada is one of 29 states where it will not supply pharmacies with the Mifeprex, the brand name of the FDA-approved abortion drug mifepristone. The company will, however, continue to supply the drug directly to physicians.

“This is just outrageous that any one company would suppose upon themselves to interpret our laws in a manner that prevents women across this country from getting the appropriate medication they need when it comes to reproductive freedom,” Cortez Masto said in an interview, adding that she sees the decision as tantamount to the company “enacting the ridiculous agenda of the far-right extreme.”

AmerisourceBergen spokesperson Lauren Esposito declined to confirm or deny what the company said to Cortez Masto’s office, but told POLITICO its goal is “maintaining access to medications where legally permissible.” She also noted that the definition of what is legal is “dynamic and rapidly evolving in individual states based on nuances in state laws and regulations that are under regular pressure from legal challenges.”

The senator’s clash with the company reflects the mounting tensions around where and how patients in a post-Roe America can access abortion pills — the most popular method of terminating a pregnancy — as well as the pressure corporate America faces as GOP officials seek to ramp up enforcement of abortion laws.

Cortez Masto, the state’s former attorney general, said her office reached out to AmerisourceBergen last week after Vox reported on the company’s strategy for distributing abortion pills.

She said following their conversation, she started working with Nevada’s Democratic attorney general, Aaron Ford, on how to make the case to AmerisourceBergen that state law protects pharmacy distribution of the pills — a step she said the company requested but that she believes is unnecessary. Ford’s office did not comment on the conversations, citing the attorney general’s travel this week.

The senator told POLITICO that Nevadans voted decades ago, via ballot initiative, to legalize abortion up to 24 weeks of pregnancy, and an additional 2019 law protects the right to prescribe and use abortion pills. There are no bans on telehealth prescriptions of the drugs, no mandatory ultrasounds, and no requirement that a physician be present when the patient takes the pills.

“In Nevada, we are pro-choice state. We codified Roe v. Wade in 1990. We believe in a woman's right to choose and that women should have access to the medication they need,” she said. “Any company that is going to not follow our law and not provide that essential medication that has been provided for the last 20 years — I will call them out on it.”

Walgreens, the nation’s second-largest pharmacy chain, confirmed to POLITICO earlier in March that it will not distribute the pills in 21 states where Republican attorneys general have threatened the company with legal action. Albertsons, Costco, CVS, Kroger, Rite Aid and Walmart have, so far, refused to reveal their distribution plans.

But since all U.S. retail pharmacies depend on AmerisourceBergen to stock the brand name version of the medication, the wholesaler’s interpretation of state laws may dictate access for millions of people going forward. Pharmacies may still be able to obtain and distribute generic versions of the abortion pill.

AmerisourceBergen declined to provide its list of states where it will not distribute the drugs or the reason why its analysis of where it could do so differs from Walgreens’. The company stressed in a statement that it will continue distributing the pills to “certified providers such as OB-GYN clinics and physician-led practices” in all states. Yet for many people across the country — particularly in rural areas and places considered maternal care deserts — a brick-and-mortar pharmacy is much more accessible than a doctor’s office, one reason the Biden administration sought to expand who could provide abortion pills after Roe was overturned.

Pharmacy dispensing of abortion pills is a new frontier — made available by a policy change the Biden administration announced in January. Major chains, independent pharmacies and distributors like AmerisourceBergen are working to obtain certification from the drugmaker to sell the pills — as required by the Food and Drug Administration. But as they do so, they’re wading into a fight among state and federal elected officials who have competing interpretations of whether pharmacy dispensing of the drugs is legal.

Nearly two dozen Republican state attorneys wrote to several major pharmacy chains in February threatening legal action should the companies dispense abortion pills by mail or at brick-and-mortar pharmacies in their states. Democratic attorneys general responded with their own letter urging the pharmacies to dispense the pills and arguing their right to do so is legally protected.

Other leaders have jumped into the fray. California Gov. Gavin Newsom, a Democrat, terminated a contract with Walgreens to supply drugs to its sprawling correctional system following POLITICO’s report on the chain’s abortion pill distribution stance, while Sens. Elizabeth Warren (D-Mass.) and Mazie Hirono (D-Hawaii) have demanded pharmacies disclose to Congress where they will dispense the pills and how they are making that decision.

“The law may make it really clear that this is permissible but the ability of AGs to threaten legal action can interfere with companies doing what the law says,” said Joanne Rosen, a senior lecturer in the Bloomberg School’s Department of Health Policy and Management. “Those officials are counting on intimidation and fear shutting something down even if it’s lawful, because companies don’t want to face prosecutions.”