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OCR Provides Post-Dobbs Guidance on Non-Discrimination to Pharmacies

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has had far-reaching effects across health care, including on pharmacies filling patient prescriptions.

On July 13, 2022 the US Department of Health and Human Services Office for Civil Rights (OCR) released a guidance document to retail pharmacies regarding their obligations under federal law to ensure access to comprehensive reproductive health care services. OCR reminded pharmacies that they are prohibited from discriminating against pharmacy customers on the bases prohibited by Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act of 1973, including supplying prescribed medications, determining the suitability of prescribed medication for patients, or advising patients on medications.

OCR also noted that discrimination against pregnant people based on their pregnancy or related conditions is a form of sex discrimination and cited examples where certain pharmacy activities may be considered discrimination on the basis of sex. The agency’s examples included:

  • A pharmacy’s refusal to fill the individual’s prescription of mifepristone and misoprostol in connection with an early pregnancy loss only because these medications can also be used to terminate a pregnancy;

  • If the pharmacy refuses to fill a prescription of an individual with severe and chronic stomach ulcers or does not stock misoprostol because it can be used to assist with the passing of the miscarriage;

  • If a hospital pharmacy refuses to provide the antibiotic required for treatment for an individual who experiences a miscarriage complicated by a uterine infection because subsequent care may include uterine evacuation;

  • A pharmacy’s refusal to fill the methotrexate prescription of an individual experiencing an ectopic pregnancy because it will halt the growing of cells and end the pregnancy; and

  • A pharmacy that normally provides contraceptives and refuses to fill a hormonal contraception prescription, including an emergency contraceptive prescription, because it can prevent ovulation or block fertilization or otherwise prevent a pregnancy.

OCR’s guidance came out as pharmacies are grappling with state and federal laws, with some national pharmacy chains having announced policies requiring their pharmacists to ensure prescriptions are not intended to be used to terminate pregnancies in states that restrict or prohibit the dispensing of medications for the purpose of inducing an abortion. The industry is already seeking alternative methods of access to medications that can terminate pregnancies, as HRA Pharma recently submitted an application to the Food and Drug Administration (FDA) to switch an existing prescription-only progestin birth control pill to over-the-counter (OTC) status. We provide a full analysis of the impact of this FDA application in our blog. Additionally, some abortion pill providers and physicians are finding new, creative ways to expand access to abortion pills

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 271
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