Some pharmacists fear jail time over murky abortion laws
In states with abortion bans, there’s little guidance for dispensing the FDA-approved drug misoprostol, which is often prescribed for miscarriage.
Alarm bells ring in Matt Murray’s head when a prescription for misoprostol comes through his independent pharmacy in Boise, Idaho.
“Are there directions on the prescription that show what it’s being used for?” said Murray, a pharmacist and director of operations for Customedica Pharmacy. “If not, then we would probably need to call the [doctor’s] office and confirm why it’s being prescribed.”
The medication is legal — approved by the Food and Drug Administration to prevent stomach ulcers — but it can also be used for abortions, which became illegal in Idaho with few exceptions when the U.S. Supreme Court overturned Roe v. Wade in 2022.
When that happened, misoprostol went from “something that wasn’t on the radar but now sends up an alert in the pharmacy,” Murray said.
Misoprostol, which works by contracting the uterus, is also commonly used ahead of gynecologic procedures, such as the insertion of intrauterine devices for birth control, or after miscarriages, when pregnancies end on their own. The drug helps speed up the time it takes for a woman’s body to expel the failed pregnancy.
Murray’s hesitation in dispensing misoprostol isn’t based on personal feelings about abortion. It’s the fear of legal action or jail time.
Idaho’s “Defense of Life Act” says any person who performs or assists in an abortion could face felony criminal charges and up to five years in prison. Exceptions include to save the life of the woman and in cases of rape or incest.
Does that mean pharmacists could be liable for dispensing a drug that could be used in an abortion — even if it’s not?
Pharmacists like Murray in Idaho aren’t sure.
“The law isn’t clear whether a pharmacist is committing a felony for dispensing the medication,” he said. “What level of due diligence are we expected to perform?”
Alison Tanner, senior legal counsel at the National Women’s Law Center, said, “Pharmacists are understandably scared by these incredibly strict abortion laws that have been enacted, and they are afraid that they might be charged with a felony simply for doing their job.”
In some cases, pharmacists have refused to prescribe misoprostol, no matter its purpose.
The U.S. Department of Health and Human Services told NBC News it isn’t able to confirm the number of complaints it has received from women who have been denied prescribed medications.
In a public statement last year, Melanie Fontes Rainer, director of HHS’ Office for Civil Rights, acknowledged that women across the country have faced delays in getting medication even when they weren’t seeking abortions.
“The overturning of Roe v. Wade is causing chaos in our healthcare system, including in our pharmacies, where healthcare providers are suddenly being asked to not only provide healthcare, but also become legal experts in navigating the patchwork of abortion bans,” Rainier wrote in a statement.
The Idaho Board of Pharmacy said that because of the “uniqueness of every situation,” it isn’t providing guidance for its pharmacists who dispense medications that could be used to terminate a pregnancy.
“Pharmacists licensed in Idaho are expected to comply with the law. Idaho law, in most circumstances, prohibits abortion,” a board representative wrote in an email, adding that “abortion does not mean the removal of a dead unborn child or the treatment of a woman who is no longer pregnant.”
Kristin Colson, 36, of Boise, experienced her own distressing delay.
When she and her husband, Loren, realized she was having a miscarriage in January, her doctor prescribed misoprostol. The natural process of a miscarriage can be unpredictable, and it can take months, but misoprostol helps speed it.
It was the couple’s fifth pregnancy loss. Kristin had used the drug successfully in the past.
“Everybody processes grief differently. But for me, I like to have a plan,” Colson said. “Choosing to use the medication, I can time when this happens.”
She waited more than a day to hear back from her local Walgreens, she said. When she called to ask about the status of her order, the pharmacist, Colson said, told her that he “didn’t feel comfortable filling the misoprostol prescription at that dosage, given the Idaho laws.”
The response was a shock, she said.
“It’s a tough time. You’re trying to process your loss. And I was frustrated, confused,” Colson said. “You just want to move on.”
Loren Colson, also 36, said: “We’re trying to start a family. We’re not old, but we’re not young, either. We are on a little bit of a timeline if we want to start our family. It really impacts us, any delay in that process.”
In a statement, Walgreens said that while it doesn’t require “pharmacists with moral objections to dispense reproductive medications,” it actively works to make sure other pharmacists are available to fill prescriptions.
Another Walgreens ultimately filled Kristin Colson’s misoprostol prescription.
But the concern among pharmacists remains.
“Ultimately, the fear is that people aren’t getting the medical care that they’re needing,” Murray said.
-NBC News