Jul 14, 2022 - Health

Biden's guidance on pharmacists and abortion bans gets blowback

Picture of the HHS building
Photo: Mark Wilson/Getty Images

The Biden administration says powers under the Affordable Care Act can clear up any uncertainty about whether states with abortion bans can influence what medicines pharmacists dispense. But it may not be so straightforward.

Driving the news: The Department of Health and Human Services released guidance on Wednesday to clarify that pharmacies that receive federal funding cannot deny people from accessing prescribed medication that could be used to terminate a pregnancy because doing so runs afoul of anti-discrimination provisions in the ACA.

  • Some patients, particularly in states that have banned or restricted abortions, have been denied access to cancer treatments and other drugs, because they can also be used to terminate a pregnancy.

Context: The ACA says covered providers cannot exclude people from their "programs and activities" based on their race, nationality, age, disability and sex — the last of which includes discriminating against people on the basis of pregnancy or related conditions.

What's happening: State abortion bans are "vaguely written" and "so extreme" that health providers and pharmacists are concerned that prosecutors will use these laws to go after them for assisting someone in getting an abortion by even filling up a prescription, said Cary Franklin, professor and faculty director at UCLA Law's Center on Reproductive Health, Law and Policy.

  • HHS' guidance is "a clear statement of federal law that says pharmacists may not discriminate on these grounds, they are violating the law when they do ... but, as we've seen in this area, it's nothing new and it's safe to see people pushing the envelope and to see people refusing to abide by the law, and pharmacies have been a big site of that kind of disobedience and refusal to abide by the law."

A senior HHS official told reporters on Wednesday that federal law supersedes state law, and the department will evaluate on a case-by-case basis whether laws conflict with one another.

  • Yes, but: The American Pharmacists Association (APhA) said that the HHS' guidance offers potential examples when pharmacists' refusal to dispense a medication to a person "may be" a violation of a federal law. This type of language makes it "unclear" if the guidance preempts state law.

What they're saying: The APhA said in a statement that the HHS "hastily issued this guidance which attacks and undermines the fundamental responsibilities and professional judgment of the pharmacist.”

  • "It only adds more confusion to an already complicated legal and regulatory landscape post-Dobbs that pharmacists must navigate every day to help our patients," said Ilisa Bernstein, APhA's interim executive vice president and CEO.
  • "When dispensing medications, according to this guidance, pharmacists in certain states may be in legal jeopardy and forced to question whether they will face conflicting state or federal penalties when providing care to their patients."

Between the lines: HHS said that its guidance does not address how the so-called Church Amendment — which allows health care personnel to refuse to perform or assist in providing an abortion or sterilization based on religious beliefs — applies in a given case. The department will evaluate on a case-by-case basis.

  • It also remains unclear how the guidance would work when considering state "conscience" laws that protect health providers who refuse to offer specific health care based on their religion.
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