After a series of well-publicized incidents, federal health officials sent U.S. pharmacies a stern warning: pharmacists can't discriminate against pharmacy customers when it comes to dispensing medications that can be used for abortions or birth control — they must comply with federal civil rights laws.
The reminder comes after many news reports have surfaced about pharmacists refusing to fill prescriptions for medications that are used for abortion, like mifepristone, misoprostol and methotrexate.
"If a pharmacy refuses to fill the individual's prescription — including medications needed to manage a miscarriage or complications from pregnancy loss, because these medications can also be used to terminate a pregnancy — the pharmacy may be discriminating on the basis of sex."
"The guidance makes clear that as recipients of federal financial assistance, including Medicare and Medicaid payments, pharmacies are prohibited under law from discriminating based on race, color, national origin, sex, age, and disability in their programs and activities," the United States Department of Health and Human Services (HHS) said in its warning. "This includes supplying prescribed medications; making determinations regarding the suitability of prescribed medications for a patient; and advising a patient about prescribed medications and how to take them."
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Officials specifically pointed to a provision in the Affordable Care Act that prohibits pharmacists from making their own decisions about the suitability of a prescribed medication for a patient, and it applies to recipients of financial assistance from HHS — which is an estimated 60,000 patients across the country. The provision is based on Title VII of the Civil Rights Act of 1964, which prohibits discrimination against someone on the basis of race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity) or religion.
"An individual experiences an early pregnancy loss (first-trimester miscarriage) and their health care provider prescribes pretreatment with mifepristone followed by treatment with misoprostol to assist with the passing of the miscarriage," the HHS gave as an example in the guidance. "If a pharmacy refuses to fill the individual's prescription — including medications needed to manage a miscarriage or complications from pregnancy loss, because these medications can also be used to terminate a pregnancy — the pharmacy may be discriminating on the basis of sex."
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Medication abortion to terminate an unwanted or non-viable pregnancy — also known as the abortion pill — usually involves two different drugs delivered in pill form: mifepristone and misoprostol. Mifepristone (also known as RU-486), which was approved for abortion in the United States by the Food and Drug Administration (FDA) in September 2000, can be used safely and effectively to terminate a pregnancy up to 70 days after a person's last menstrual cycle. Misoprostol is taken after mifepristone. According to the Mayo Clinic, methotrexate is not as commonly used to terminate unwanted pregnancies but can often be used in conjunction with vaginal misoprostol as a treatment for ectopic pregnancies.
The issued guidance follows a wave of abortion bans and restrictions in states that are now turning their crosshairs on medications that can be used to abort a fetus. But many of these medications can be used for other purposes, too. For example, someone with rheumatoid arthritis may be prescribed methotrexate as a standard immunosuppressive treatment. A person with chronic ulcers might need misoprostol. Someone who is experiencing a life-threatening ectopic pregnancy (which are by nature non-viable) might be prescribed methotrexate to halt the pregnancy.
Currently, in most states where abortion is banned, state statutes technically make providing an abortion illegal, rather than prosecute those getting them — although, as Rebouché alluded to, there is fear that states might start targeting people who receive abortions as criminals, too.
"I think that is absolutely where states are going to turn their attention to," said Rachel Rebouché, dean and professor of law at Temple University School of Law in Philadelphia. "Abortion pills can now be mailed, telehealth has become a viable option, Aid Access has become increasingly a demanded service, and I fear that they could turn to targeting patients."
Rebouché said she believes this will "implicate pharmacies in a really interesting way."
Currently, in most states where abortion is banned, state statutes technically make providing an abortion illegal, rather than prosecute those getting them — although, as Rebouché alluded to, there is fear that states might start targeting people who receive abortions as criminals, too. But the language as to who "providers" are can be a bit unclear. For example, in Texas, anyone "aiding and abetting" someone having an abortion could be held civilly liable.
"I have some sympathy for pharmacists who have received no guidance from the states — law has changed, in some cases, over a one week period, and they've gone from one day medication abortion is legal in the state, the next day it is not, and figuring out what are their responsibilities under these new laws — would they be complicit in an SB8-style suit in Texas? Would they be aiding and abetting if it turns out the drug was used for abortion?" Rebouché said. "The state isn't giving much guidance or protection."
Rebouché told Salon she thinks the HHS warning is an effective reminder to pharmacies.
"Their vetting, whether or not they suspect someone's pregnant and not getting ulcers, is a form of deciding which patients to give perfectly legally prescribed medicines based on a pregnancy status," Rebouché said. "I think it's helpful for the HHS to weigh in and remind pharmacists that they have under the First Amendment the right to abstain from prescribing or participating in abortion, but that is not someone who's treating ulcers."
Rebouché added that one important part missing from this conversation is how to legally discern rejection of dispensing the medication from religious beliefs and rejection from discrimination. Notably, a patient doesn't have to disclose the reason for needing medication.
"I didn't see that issue address how to discern religious refusal because you believe it's an abortion," Rebouché said. "But I tend to think they're silent on it, because it's addressed to pharmacists who are otherwise handling these medications and deciding that to avoid liability or to avoid punishment or to avoid controversy ... they are not going to prescribe them, and no longer taking measures to ban abortion, and seems to me outside a conscientious objection question."
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