Austin, TX—The Texas attorney general has filed a lawsuit against the Biden Administration, challenging guidance that pharmacies are obligated to provide reproductive health drugs.

In July 2022, the U.S. Department of Health and Human Services (HHS) issued guidance on the issue. According to an interpretation at the time from the National Community Pharmacists Association (NCPA), the HHS was warning pharmacists that they could violate federal civil rights laws if they refused to dispense certain medications used to terminate a pregnancy.

The issue is especially complex, however, because some of the drugs in question also are used to treat other conditions, such as rheumatoid arthritis, the NCPA noted.

“Although HHS is claiming that federal anti-discrimination law requires that every pharmacy in America be transformed into an abortion-on-demand clinic, this is patently false,” according to the lawsuit filed by Texas Attorney General Ken Paxton in early February. “Contrary to the Administration’s guidance, Title IX’s anti-discrimination protections have never been used to compel companies to provide abortions. Rather, these protections have cut in the opposite direction by prohibiting any person or entity from being compelled to aid in the provision of abortions.”

The lawsuit argues that the Supreme Court’s June 2022 Dobbs v. Jackson Women’s Health decision “made clear that laws governing abortion are to be decided by state lawmakers, not the federal government. HHS’ guidance thus runs contrary to Dobbs by unlawfully preempting certain states’ laws that bar pharmacies from supplying these abortion-inducing drugs.”

Mr. Paxton added in a press release, “It’s not going to work. Texas and several other states across the country have dutifully passed laws to protect the unborn, and we are not going to back down just because unelected bureaucrats in Washington want to create illegal extremist federal policies.”

Meanwhile, Republican attorney generals from 20 states have warned CVS and Walgreens against mailing abortion pills in their states. The nation’s largest drugstore chains said last month that they would dispense mifepristone but only in states where the law allows it.

The FDA provided information in late January on how pharmacies can dispense the drug, which was approved in 2000, to end an intrauterine pregnancy through 10 weeks gestation. “Under the Mifepristone REMS Program,” the FDA wrote, “mifepristone must be dispensed by or under the supervision of a certified prescriber or by certified pharmacies for prescriptions issued by certified prescribers. Under the Mifepristone REMS Program, mifepristone may be dispensed in-person or by mail.”

“States have provided very little clarity on how pharmacists should proceed in light of conflicting state and federal laws and regulations. It is highly unfair for state and federal governments to threaten aggressive action against pharmacists who are just trying to serve their patients within new legal boundaries that are still taking shape,” NCPA CEO B. Douglas Hoey, pharmacist, MBA, said last summer.

The new guidance followed an executive order by President Joe Biden ensuring access to reproductive healthcare in response to a Supreme Court decision overturning Roe v. Wade.

The HHS said it was issuing guidance to about 60,000 U.S. retail pharmacies, “reminding them of their obligations under federal civil rights laws. The guidance makes clear that as recipients of federal financial assistance, including Medicare and Medicaid payments, pharmacies are prohibited under law from discriminating based on race, color, national origin, sex, age, and disability in their programs and activities. This includes supplying prescribed medications; making determinations regarding the suitability of prescribed medications for a patient; and advising a patient about prescribed medications and how to take them. The action is the latest step in the HHS’ response to protect reproductive health care.”

Responding at the time, the American Pharmacists Association said the guidance  takes away a pharmacist’s professional judgment to make “determinations regarding the suitability of a prescribed medication for a patient; or advising patients about medications and how to take them.” In a press release, it added, “The implications of the guidance have the potential to cause widespread unintended consequences beyond reproductive health care services.”

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