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On July 13, the Department of Health & Human Services (HHS) Office for Civil Rights (OCR) issued guidance to retail pharmacies that refusing to dispense a prescribed medication or making a determination on the suitability of that medication on the basis of the patient’s sex, pregnancy, or pregnancy-related conditions is discriminatory conduct in violation of federal law.[1] The guidance made clear that refusing to dispense or making suitability determinations on the basis of a patient’s pregnancy or related conditions, such as past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth, is considered a form of sex discrimination.

As recipients of federal funding, retail pharmacies are prohibited from discriminating on the basis of race, color, national origin, sex, age and disability in their programs and activities under a range of federal civil rights laws.

Citing HHS’ commitment to improving maternal health, reducing maternal death rates and supporting women experiencing pregnancy loss, the guidance emphasized both the role of retail pharmacies as America’s “most accessible healthcare provider” and the importance of providing care in a manner free from discrimination. 

The guidance provides eight examples of prohibited conduct. These examples, in an abridged form, are as follows:

  • A pharmacy refuses to fill prescriptions for medications needed to manage a miscarriage or complications from pregnancy loss because these medications can also be used to terminate a pregnancy (sex discrimination).
  • A pharmacy refuses to fill a prescription or does not stock a prescription, such as misoprostol, because of its alternate uses (disability discrimination).
  • A pharmacy refuses to fill a prescription because it becomes aware that the medication is being taken as a lifesaving preventive measure related to a scheduled surgical abortion (sex discrimination).
  • A hospital pharmacy refuses to provide antibiotics required for treatment because of concern that subsequent care may include uterine evacuation (via medical or surgical abortion) (sex discrimination).
  • A medical provider orders methotrexate to halt an ectopic pregnancy and a pharmacy refuses to fill the prescription because it will halt the growing of cells and end the pregnancy (sex discrimination).
  • An individual with rheumatoid arthritis that meets the definition of a disability under civil rights laws is prescribed methotrexate and the pharmacy refuses to fill the individual’s prescription or does not stock methotrexate because of its alternate use (disability discrimination).
  • An individual presents a prescription for an emergency contraceptive at their local pharmacy after a sexual assault to prevent pregnancy and the pharmacy otherwise provides contraceptives (e.g., external and internal condoms) but refuses to fill the emergency contraceptive prescription because it can prevent ovulation or block fertilization (sex discrimination).
  • A pharmacy provides contraceptives (e.g., external and internal condoms) but refuses to fill a prescription for a certain type of contraceptive (such as hormonal contraceptives) because it may prevent pregnancy (sex discrimination).

These examples and OCR’s guidance put the nation’s 60,000 retail pharmacies on notice that refusing to fill a valid prescription because the medication may be used for abortion or other reproductive care will draw an investigation. If an investigation results in the finding of a violation, entities can be subject to various levels of administrative and monetary penalties. Recent resolution agreements may be reviewed on the OCR’s webpage.

To read the guidance and the examples provided by HHS in full, please follow this link.  As with any agency-issued FAQ or hypothetical fact application, these illustrative cases should not be interpreted as an exhaustive list. Retail pharmacies and the pharmacists they employ should carefully evaluate any scenario involving the refusal to fill a valid prescription as potentially discriminatory conduct

[1] Section 1557 of the Affordable Care Act and its implementing regulations and Section 504 of the Rehabilitation Act of 1973.

Please visit the BakerHostetler Post-Roe Resource Center or contact the BakerHostetler Dobbs Decision Task Force for ongoing updates and information.