Pharmacies risk violating civil rights laws if they deny access to drugs that can be used for abortion, HHS says

The Health and Human Services Department on Wednesday warned U.S. retail pharmacies that they risk violating civil rights law if they deny access to medication used in abortions under certain circumstances.

The HHS Office for Civil Rights said pharmacies cannot deny access to prescription medication used for reproductive health care on the basis of the customer’s sex, pregnancy status and other protected groups under federal discrimination laws.

This may include the prescription of the abortion pill, mifepristone used in combination with misoprostol, to assist with first-trimester miscarriages. The medication can also be used to terminate an unwanted pregnancy, according to HHS guidance issued to the nation’s 60,000 retail pharmacies.

HHS also said pharmacies risk violating civil rights law if they refuse to fill a prescription for methotrexate to halt ectopic pregnancies.

People who believe a pharmacy is discriminating against them can file a complaint with the HHS Office for Civil rights, an official at the department told reporters on a call Wednesday. Complaints will be reviewed on a case-by-case basis, the official said.

“The Department is committed to improving maternal health — including for individuals who experience miscarriages — and vigorous enforcement of our civil rights laws is one way in which we plan to do so,” HHS said in guidance issued to the nation’s 60,000 retail pharmacies.

The Affordable Care Act prohibits recipients of federal financial assistance from discrimination on the basis of sex, race, color, national origin, age and disability. Federal civil rights law prohibits discrimination on the basis of current, past or intended pregnancy as well as medical conditions related to pregnancy, according to HHS.

Medication used to terminate pregnancies has become a flashpoint between the Biden administration and states that are banning abortion in the wake of the Supreme Court overturning Roe v. Wade last month, which protected the procedure as a constitutional right for nearly 50 years.

The FDA approved mifepristone more than 20 years ago as a safe and effective way to end a pregnancy before 10 weeks. In December, the FDA said it would permanently allow women to receive the pill by mail from licensed health-care providers.

But states that have banned abortion in the wake of the Supreme Court’s ruling have also outlawed the administration of drugs that terminate pregnancies. The abortion bans generally make exceptions for the procedure when the woman’s life is in danger.

Attorney General Merrick Garland has said the Justice Department will take enforcement action against states that ban mifepristone because they disagree with the FDA’s judgement that the drug is safe and effective. But most states that immediately banned the administration or prescription of abortion-inducing medication after the Supreme Court ruling have done so on the basis that it terminates a pregnancy, not over questions about the pill’s safety or efficacy.

The Center for Reproductive Rights has called for the Biden administration to declare a public health emergency in an effort to expand access to mifepristone. The president over the weekend said he has asked health officials in his administration to look at what impact declaring a public health emergency might have on abortion access.

But Jen Klein, director of the White House Gender Policy Council, told reporters on Friday that the administration concluded that declaring a public health emergency was not the best option to respond to states banning abortion.

“When we looked at the public health emergency, we learned a couple things.  One is that it doesn’t free very many resources. It’s what’s in the public health emergency fund, and there’s very little money — tens of thousands of dollars in it,” Klein said. “So that didn’t seem like a great option. And it also doesn’t release a significant amount of legal authority. And so that’s why we haven’t taken that action.”