Pharmacists cannot deny people prescribed medication — including hormonal birth control or emergency contraception — because those people are pregnant or might become pregnant, per new guidance from the Biden administration.
The guidance, issued by the Department of Health and Human Services’ Office of Civil Rights on Wednesday, is meant to clarify and enforce anti-discrimination provisions in the Affordable Care Act. In the weeks since Roe v. Wade was overturned, there has been confusion about whether pregnant people can access pills like mifepristone and misoprostol — used for medication abortions but also to manage miscarriages — as well as concern about whether people will be able to get certain forms of contraception such as Plan B.
The guidance was prompted by numerous complaints and questions sent to the administration about whether people could still receive prescribed medications, particularly in states that have banned or restricted access to abortions, an HHS official said.
Pharmacies receiving Medicare funding that deny people access to those prescribed medications could be found in violation of the ACA’s sex discrimination protection, especially if they are withholding them because of the patient’s pregnancy status, the HHS guidance says. Pregnancy discrimination includes denying someone care because of current, past or potential pregnancy.
This could have particular implications for people who are prescribed emergency contraception and those who are experiencing a miscarriage. Per the guidance, if a pharmacy typically provides other forms of birth control — such as condoms — then withholding this method could be construed as sex discrimination. Withholding mifepristone and misoprostol from patients who are miscarrying would similarly violate federal law.
The guidance also addresses concerns about access to methotrexate, a medication used to halt pregnancy development and to treat rheumatoid arthritis. If a patient experiences ectopic pregnancy and is prescribed methotrexate, the pharmacy cannot deny patients access to that medication because of concerns that it could be used for abortions. Similarly, pharmacies cannot refuse to stock methotrexate or provide it to patients who have a prescription for treating their rheumatoid arthritis.
Civil rights laws are enforced via individual complaints. If people believe that they have experienced sex discrimination under these provisions, they can submit complaints to the Office of Civil Rights, an HHS official said.
Similarly, the Biden administration highlighted another complaint-driven system this week: A way to ensure hospitals do not deny people emergency care, including abortions in some circumstances. Experts have previously worried that complaint-driven processes rely on people knowing their rights and being able to navigate cumbersome federal systems in order to secure protections.
It’s also not entirely clear whether or how these protections would apply to people trying to get emergency contraception over the counter without an explicit prescription from a medical provider. Anti-discrimination provisions pertain particularly to activities regulated by the ACA.
Because the Food & Drug Administration has approved emergency contraception for over-the-counter sale, pharmacies are expected to make it available to patients.
This story was originally published July 13, 2022 by The 19th.