HHS: Pharmacies That Don’t Fill Contraception, Abortion Pill Rx Are Violating Fed Law

Birth control pills rest on a counter in Centreville, Maryland, on July 6, 2022. - The US Supreme Court ruling that overturned the right to abortion spurred a rush to prepare for an America where the procedure is ban... Birth control pills rest on a counter in Centreville, Maryland, on July 6, 2022. - The US Supreme Court ruling that overturned the right to abortion spurred a rush to prepare for an America where the procedure is banned in many states. "Birth control," "IUD" and even medical sterilization have all jumped in internet search trends, and drugstore chains have limited purchases of so-called morning-after pills to cope with demand. (Photo by Jim WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images) MORE LESS
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Biden administration officials on Wednesday said they are sending memos to tens of thousands of pharmacies nationwide to warn against refusing abortion or contraception care medications prescriptions.

The memos inform pharmacy workers that refusing to fill prescriptions for contraception or abortion medication or discriminating against a person based on their pregnancy status would put the pharmacy at risk of violating federal civil rights laws, according to the new guidance.

The memo comes amid reports and legal filings in some red states where pharmacists have refused to fill prescriptions for contraception and abortion medication, as well as other medications they speculate could be used off-label to end a pregnancy. This all comes, of course, after the Supreme Court overturned Roe v. Wade last month.

“Under federal civil rights law, pregnancy discrimination includes discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth,” a new memo by the Department of Health and Human Services (HHS) reads. HHS is sending the memo to more than 60,000 retail pharmacies this week.

The memo by HHS cites provisions in the Affordable Care Act and the Rehabilitation Act of 1973 to argue that it is unlawful for pharmacies that receive federal funding to refuse filling prescriptions for contraception and abortion pills based on their beliefs.

The Biden administration guidance includes several examples of scenarios that could be considered a violation of federal law — like a pharmacist refusing to fill a prescription for the abortion pill mifepristone for a person who is experiencing an early miscarriage.

In a call with reporters on Wednesday, a senior HHS official said its memo to pharmacies is part of the federal government’s response to the high court’s overturning of Roe, according to the Washington Post.

“We are committed to ensuring that everyone can access health care, free of discrimination,” Secretary Xavier Becerra said in a statement releasing the guidance. “This includes access to prescription medications for reproductive health and other types of care.”

The HHS official also reportedly said that people who believe they’ve experienced discrimination when seeking to fill abortion medication prescriptions can file formal complaints with the agency’s civil rights office.

The latest HHS memo comes days after it sent a letter to health care providers informing them that they are federally required to offer abortion services if the pregnant person’s life is at risk, saying federal law preempts state laws or mandates that have banned the procedure in the wake Roe’s demise.

In its letter to health care providers on Monday, HHS cited the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires that medical facilities determine whether a pregnant person seeking treatment may be in labor or whether they are in an emergency medical condition where an abortion is “the stabilizing treatment necessary to resolve that condition.”

In addition to both measures, the Justice Department on Tuesday announced the formation of a special team called the Reproductive Rights Task Force, which is set to launch efforts to find avenues for the federal government to protect reproductive health care and abortion rights in light of the high court’s dismantling of Roe and GOP-led states’ subsequent abortion bans. According to the DOJ’s announcement, the task force will monitor and respond to “all state and local legislation and enforcement actions” that threaten to, among other things, prevent out-of-state travel for abortions and block access to FDA-approved abortion pills.

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