Democrats’ rhetoric about ‘fascism’ when conservative governors resist corporate wokeness is entirely insincere.
Democrats' rhetoric about 'fascism' when conservative governors resist corporate wokeness is entirely insincere, as progressive politicians routinely pressure private business.
G avin Newsom and other prominent Democrats seek to wield government power against Walgreens for complying with state abortion laws. For this, the Democrats are met with cheers by media progressives. This reminds us of the obvious: All of their rhetoric about “fascism” and “authoritarianism” when conservative governors resist corporate wokeness is entirely insincere. It is also a reminder that the way in which Democrats routinely pressure private business is not just a threat to free enterprise, to the conscience rights of individuals, and to the right to life itself; it is also a direct threat to democracy and the rule of law.
The War on State Abortion Laws
The current controversy began in January when Walgreens and CVS (later followed by Rite Aid) announced that they intended to sell mifepristone, a drug used to induce abortion by chemical means, after Joe Biden’s Food and Drug Administration changed the rules to permit the drug to be dispensed by retail pharmacies.
The pharmacies said that they would dispense the drug only when prescribed, but the FDA under successive Democratic administrations has watered down the degree of medical supervision required to get a prescription. The original rules written when the drug was approved in late 2000, in the last months of the Clinton administration, required three visits to a doctor. In 2016, in the waning months of Barack Obama’s term, the FDA dropped the required number of visits to one and allowed a visit to any health-care provider — without even defining what sort of provider would qualify. It also stopped requiring reports of any adverse reaction from the drug short of death. In 2021, Biden’s FDA used the Covid emergency as an excuse to temporarily waive the requirement of a physical examination entirely. A few months later, it cited the absence of adverse health reports as a basis to make the Covid-emergency exception last forever, even if that resulted in more deaths and serious injuries to women from failure to detect conditions (such as an ectopic pregnancy) in which use of the drug would be dangerous.
Walgreens emphasized in its statement that it “will dispense these consistent with federal and state laws.” CVS said it would do so “where legally permissible.” Rite Aid added that it would also dispense the abortion pills by mail. From the outset, the pharmacies signaled that they intended to comply with both federal and state laws.
This immediately put the pharmacies in the crosshairs between the laws of many states that ban abortion at various points in a pregnancy (which laws typically do not distinguish between surgical and chemical abortions) and a multipronged effort by the Biden administration to use regulatory edicts to nullify state and even federal laws restricting abortion — even though Congress has passed no law authorizing the president or the bureaucracy to do so.
If this sounds familiar, it is by now this administration’s preferred modus operandi: Make changes in the law by presidential diktat, administrative order, nonenforcement of written laws, or just creative interpretation. Immediately after the Supreme Court’s decision in Dobbs, Attorney General Merrick Garland announced that “the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” The issue is currently being litigated in federal court in West Virginia in a case brought by drugmaker GenBioPro that wants West Virginia’s ban thrown out. The Justice Department has yet to make an appearance in the case, but Garland has made its position clear.
It is one thing for the FDA to rewrite the rules for how a drug can be prescribed, when and whether the drug is too unsafe to market, and what warnings must be given before taking the drug. Even when the FDA makes tragic mistakes in this regard, it at least is acting within its statutory authority in its core area of competence. And when the FDA decides, for example, what warning labels a drug should carry, federal preemption principles prevent individual states from making their own separate rules.
It is, however, much more dubious to treat FDA approval of a drug as preempting state bans on its sale that have nothing to do with drug safety and everything to do with basic questions of human life and liberty. The express purpose of prescribing or selling mifepristone is to kill an unborn child, which violates state laws against such killing. The FDA has no statutory mandate over state homicide laws in general or state abortion laws in particular, and under the major-questions doctrine — a rule for reading statutes — a question as vast and contentious as the legality of abortion is not one the courts should lightly presume was resolved by an unstated assumption in a detailed regulatory scheme on a completely different topic.
It would be especially bizarre for the courts to presume that the federal commerce power gives the FDA unwritten authority to compel states to allow the legal use of an item when federal law itself explicitly bans that same item for that same purpose from interstate or foreign commerce. Federal law criminalizes the sending of abortion drugs through the mail, the importation of such drugs into the country, or the use of common carriers or websites in the “carriage in interstate or foreign commerce” of such drugs. That ban originates with a law, popularly known as the Comstock Act, that was enacted by Congress in 1873. It was signed into law by Ulysses S. Grant, our first great pro-life president, long before Congress created the FDA. Through multiple statutory modifications that have never changed its core ban, it has been on the books continually ever since.
Biden and Garland are busily trying to unilaterally nullify that law, too, by executive fiat, in this case through a legal opinion of the Office of Legal Counsel. The OLC’s opinion was issued six months after Garland announced its conclusion in a press release — in case you’re wondering whether it was the disinterested work of legal scholarship. Its author, assistant attorney general Christopher Schroeder, was chief nominations counsel to Joe Biden on the Senate Judiciary Committee in the early 1990s and first came to prominence with a 1987 hatchet job on Robert Bork, which among other things howled that “Bork seems sure to vote the other way [from Roe v. Wade], moving the country back to the scandalous state of affairs that existed before 1973.”
Ed Whelan has detailed the many glaring holes in the OLC memo in depth here, here, here, and here, and its continuing effect is also at issue in a different case being litigated in federal court in Texas challenging the FDA’s approval of mifepristone.
Much of the OLC’s position depends upon the pretense that the law doesn’t apply when the person mailing the drugs doesn’t know that the abortion drugs will be used for an abortion in violation of the law — even though the mailing of the drug requires a prescription. The Comstock Act is directly relevant to the Walgreens dispute because the FDA is requiring the pharmacies, as a condition of the program, to agree to make mail delivery an option in explicit violation of federal criminal law.
The State Attorneys General
On February 1, following the pharmacies’ announcement, Missouri attorney general Andrew Bailey issued a letter signed jointly alongside 19 other state AGs (including the attorneys general of Texas and Florida) warning Walgreens that “the Biden administration’s [OLC] opinion fails to stand up even to the slightest amount of scrutiny,” and that “the laws of many states also prohibit using the mail to send or receive abortion drugs.” The letter also noted that state attorneys general may be able to enforce federal law because some state consumer-protection laws deem violations of federal law to be a deceptive trade practice, and because the Comstock Act itself is civilly enforceable in some circumstances because its violation is treated as a predicate act under the Racketeering Influenced Corrupt Organizations Act (RICO).
Walgreens, having no desire to expose itself to fire from the law-enforcement arms of 20 states, responded last week by announcing that it would not sell the abortion pill in a number of states, including states where abortion remains legal but whose state attorney general objected. It did not indicate that it would hesitate to sell the pill in California and other states whose governments enthusiastically promote abortion.
But, for California governor Gavin Newsom, that was not enough. Newsom vowed to have the state government boycott Walgreens, not over how it does business in California, but because it refused to violate the laws of other states. In Newsom’s view, California’s market power should give it a veto over democracy elsewhere in America: If the voters in 20 states elect governments that ban abortion pills, California should get to use its sheer size to compel businesses to pressure those states into doing what California’s voters want, not what their own citizens vote for in free and fair elections. “California won’t be doing business with” Walgreens, Newsom tweeted, “or any company that cowers to the extremists and puts women’s lives at risk. We’re done.”
The irony is rich. During the fight between Ron DeSantis and Disney, Newsom bellowed on Twitter:
THIS is what “business friendly” means? 🤔
We protect free speech in California. We help our businesses grow, thrive, and invent the future.
Punishing businesses for speaking out against hatred is the move of an authoritarian regime. https://t.co/dACO1jL5PC
— Gavin Newsom (@GavinNewsom) April 20, 2022
Did Newsom mean that governments shouldn’t pressure businesses? Of course not — it’s his favorite thing to do. The actual principle at work is consistent, it’s just not what his rhetoric suggests. Liberal and progressive state governments have made an art form out of using their power as regulators, investors, and customers not just to get big corporations to do their bidding, but to weaponize those corporations against other states and the right of the people in those states to govern themselves. For example, the California State Teachers’ Retirement System (CalSTRS), the nation’s second-largest pension fund, has tried to use its leverage as a government entity managing the retirement funds of public employees to pressure retailers to follow California’s gun laws in states other than California regardless of the wishes of those states’ voters. This is a direct assault on democracy, and on the fundamental bargain of our federalist Union that states do not seek to govern other states.
Newsom wasn’t done. On Wednesday, he announced that he was cancelling a $54 million contract with Walgreens simply for its complying with the laws of other states. “This is an attempt to call the question ‘Which side are you on? Whose side are you on?” Newsom told Politico. Emphasizing his raw power to dictate terms, he continued, “We’re the size of 21 states’ populations combined. And likely, when the dust settles, we’ll be the fourth largest economy in the world. So, we have, we believe, moral authority, but we also have formal authority and will exercise it in partnership with the Legislature, and in the absence of that, through executive action.”
In a dramatic illustration of his incapacity for irony, Newsom asked, “Are you going to just cower in the face of bullies? Are you going to just roll over?” He then took Walgreens’ lunch money.
Newsom is not alone. Democrats on the Senate Judiciary Committee have also signaled that they intend to throw their weight against democracy and the protection of innocent life. As Washington Post progressive activist Greg Sargent reported:
Senate Democrats say they will begin to escalate pressure on Walgreens from the other side. . . . “Walgreens has to reverse its position,” Sen. Richard Blumenthal (D-Conn.) told me. “What they’ve done is absolutely unconscionable, succumbing to threats and bullying from attorneys general who have no legal basis for what they are doing.”
Blumenthal said Democrats should consider hearings if other big pharmacies such as CVS and Rite Aid — which haven’t said how they’ll proceed — follow Walgreens’s lead. “The hearings would call the chief executives of these companies to explain why they have capitulated and caved to these hard-right ideologues,” Blumenthal said.
On the committee’s Twitter feed, multiple Democratic senators chimed in to denounce states for making their own laws, including Blumenthal, who declared, “Like many others, I’ll shop elsewhere,” Tina Smith (Minn.), who tweeted “Bulls***” but using the actual profanity, Alex Padilla (Calif.), Peter Welch (Vt.), and Catherine Cortez Masto (Nev.).
The result has not been pretty for the pharmacy:
The hashtag #boycottwalgreens has exploded on Twitter, fueled by abortion rights supporters who are angry over the pharmacy giant’s plans to refuse to dispense abortion pills in 21 states, including four states where abortion remains legal.
On the other side, antiabortion demonstrators disrupted the chain’s annual shareholder meeting and plan to continue protesting Walgreens for dispensing the drugs, mifepristone and misoprostol, anywhere. They are attempting to portray retail drugstores as a new version of abortion providers. “It’s abortion politics in your neighborhood pharmacy. They brought this on themselves,” said Kristan Hawkins, president of Students for Life of America, an antiabortion group.
The company reiterated that “Walgreens plans to dispense Mifepristone in any jurisdiction where it is legally permissible to do so.”
The question of when it is legitimate for government to pressure private business, especially on socially divisive issues, is a fraught one and not entirely resolvable by a pat formula. Ideally, government should set some broad rules applicable to all that reflect general social values such as the protection of life, safety, and liberty, and individual citizens should otherwise be free to make all legal choices both individually and when associating in corporations, labor unions, and other voluntary associations. But we do not live in that ideal world.
Many of the controversies of recent years have featured extensive public and private pressure by and on private corporations to induce them, in turn, to use economic leverage to compel individual states to abandon social policies desired by their citizens and voted for in their elections. Thus, states adopting policies on abortion, guns, same-sex marriage, voting procedures, gendered bathrooms, and sexually explicit education of young children are faced with boycotts and the threatened or actual removal of sporting events such as the baseball All-Star Game and the NCAA basketball tournament. Progressive governments punish companies such as Chick-fil-A just for the public statements of their executives.
When this is purely the result of private action, it is bad enough, and one can argue that the damage done to democracy is the price of allowing the freedom of association and petition. But the use of government power to conscript corporate power as a cudgel against smaller polities is an offense against the whole structure of American self-government. Conservative governors such as Ron DeSantis and Brian Kemp have mainly been conducting a self-defense campaign in this regard, not demanding the right to dictate how Californians live, but rather demanding the right to let elections in Florida and Georgia dictate how Floridians and Georgians live. Progressives call this refusal to knuckle under “authoritarian.”
There are further complications, of course. Some of these fights, such as the DeSantis clashes with companies over vaccine mandates and diversity, equity, and inclusion indoctrination or the progressives’ attacks on companies that want to uphold their own religious standards or employ only people who share the company’s mission, involve clashes of competing liberties of the employer and employee. But there, too, the only principles at stake are the conservative principle of free enterprise and the conservative principles of religious and conscience rights. People such as Gavin Newsom and Richard Blumenthal can invoke principles, opportunistically, only by invoking those of their adversaries. They have none of their own — only power and the inability to tolerate anyone being free to vote for anything free of their power.
If there is one principle we should all be able to agree upon, if America is to survive its deep cultural divisions, it is that state governments — and the federal government, outside those areas where it has a constitutional mandate for national uniformity — should not seek to govern the people of states outside their borders. That is a deal that is acceptable to Red America — but one that the Democratic political leaders of Blue America cannot tolerate.