HHS Office for Civil Rights Issues Guidance to Retail Pharmacies in Wake of Abortion Bans

• July 29, 2022

• Virginia B. Evans , The Law Firm of Virginia B. Evans, PLC

On July 8, 2022, President Joseph R. Biden Jr. issued Executive Order 14076 designed to ensure access to reproductive health care after the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization.[1] The Executive Order asserted that the federal government would take action to protect health care service delivery and promote access to critical reproductive health care services, including abortion.[2]

On July 13, 2022, the Department of Health and Human Services (HHS), Office for Civil Rights (OCR), issued written guidance to the nation's 60,000 retail pharmacies to ensure access to comprehensive reproductive health care services. The guidance covers the obligations of retail pharmacies under federal civil rights laws with an emphasis on non-discrimination.

Abortion bans are impinging on medical care for a variety of conditions that do not involve pregnancy. For example, pharmacists in some states like Texas are reluctant to fill prescriptions for medications that are used to treat stomach ulcers, arthritis, chemotherapy, and lupus.[3] In addition, individuals suffering miscarriages or ectopic pregnancies are unable to fill prescriptions for drugs needed to treat these conditions.

Pharmacists in Texas are particularly concerned about the Texas Health and Safety Code, Sections 171.006, 171.061 and 171.063, which provide that a person may not knowingly provide an abortion-inducing drug to a pregnant person for the purpose of inducing an abortion, or enabling another person to induce an abortion, unless the person who provides the drug is a physician and provision of the drug satisfies the state's protocol. The definition of abortion-inducing drug was amended to include misoprostol, a drug that blocks progesterone, and methotrexate, a treatment for chemotherapy and auto-immune disorders including arthritis. Patients reported being unable to obtain either drug despite having a prescription.

Alisa Vidulich, MPH, policy director at the Arthritis Foundation, explained that patients who are denied access to their treatment plans risk serious health consequences. In a statement to Health, an online health information resource, Ms. Vidulich stated, “It is critical that our patients are able to maintain the continuity of that care, that they do not have a break in taking their prescription, as that could cause flare-ups as well as other disease-worsening effects.”[4]

OCR reminded retail pharmacies of their unique role in ensuring access to reproductive health care services and called the inability to obtain needed medications a health care crisis. The guidance noted the United States has the highest maternal mortality rate among developed nations and that this rate is rising. OCR emphasized that HHS is committed to improving maternal health—including for individuals who experience miscarriages—and noted that enforcement of HHS’ civil rights laws is one way to do so.

The OCR guidance explains that pharmacies may not discriminate against customers under Section 1557 of the Affordable Care Act (ACA)[5] and its implementing regulations.[6] Under the ACA, recipients of federal financial assistance are prohibited from excluding an individual from participation in, denying them the benefits of, or otherwise subjecting them to discrimination on the basis of sex and disability. As recipients of Medicare and Medicaid payments, pharmacies are prohibited from discriminating on the basis of race, color, national origin, sex, age, disability in their programs. In addition, under Section 504 of the Rehabilitation Act of 1973,[7] recipients of federal financial assistance may not discriminate on the basis of disability in any programs and activities.

Pharmacies may not discriminate against customers under the ACA or the Rehabilitation Act when supplying medications, making determinations about the suitability of a prescribed medication for a patient, or advising patients about medications, and how to take them.

OCR affirmed that it was responsible for protecting the rights of women and pregnant people in their ability to access care that is free from discrimination including reproductive health care. It noted two types of discrimination raised by the abortion bans for retail pharmacies: sex discrimination and discrimination on the basis of disability. It provided several examples of both kinds of discrimination.

Discrimination on the basis of pregnancy is a form of sex discrimination. OCR stated that such discrimination can cause significant health consequences from denial of medication or treatment. For example, a physician may prescribe mifepristone followed by treatment with misoprostol to an individual experiencing an early pregnancy loss (first-trimester miscarriage) to assist with passing of the miscarriage. If a pharmacy refuses to fill the individual's prescription because these medications can also be used to terminate a pregnancy, the pharmacy may be discriminating on the basis of sex.

Similarly, an emergency department physician diagnosing a miscarriage complicated by a uterine infection (known medically as a septic abortion) may order an antibiotic. If the hospital pharmacy refuses to provide the antibiotic because of the concerns that subsequent care may include uterine evacuation, the pharmacy may be discriminating on the basis of sex.

A physician may prescribe misoprostol to decrease the risk of serious complications to a patient with severe and chronic stomach ulcers. If the pharmacy refuses to fill the individual's prescription or does not stock misoprostol because of its alternative uses, the pharmacy may be discriminating on the basis of disability.

OCR described other scenarios to demonstrate discrimination on the basis of sex or disability including a pharmacy's:

• failure to fill a prescription for methotrexate during treatment for an ectopic pregnancy;
• failure to fill a prescription for methotrexate for an individual with rheumatoid arthritis;
• failure to stock methotrexate because of its alternative uses;
• failure to fill a prescription for an emergency contraceptive because it may block fertilization or prevent ovulation; and
• failure to fill prescriptions for any Food and Drug Administration-approved contraceptives because they may prevent a pregnancy.

To obtain additional information about the guidance or to raise questions, OCR provided its phone number: (800) 368-1019, and its website: [email protected].

ARTICLE TAGS

• Life Sciences Practice Group
• Reproductive Health Law Hub
• Health Policy and Administration
• Life Sciences