OCR is investigating pharmacies for not filling prescriptions that could induce a miscarriage

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The Office of Civil Rights is investigating whether pharmacies are not filling prescriptions that could induce a miscarriage, even if the patient is not pregnant.

Health and Human Services Secretary Xavier Becerra tweeted that HHS has received complaints about chain pharmacies not fulfilling such prescriptions since the Supreme Court overturned the right to an abortion in Roe v. Wade and Dobbs v. Jackson Women's Health Organization.

"Since Dobbs & state laws that have gone into effect, HHS has received complaints about chain pharmacies across the U.S. for not complying w/ their federal obligations to fill prescriptions. @HHSOCR has opened investigations into these companies & others," Becerra tweeted on October 14. 

Becerra was responding to a USA Today story that called out pharmacies at Walgreens and CVS that were refusing to fill prescriptions that could harm a pregnancy. The companies have policies allowing pharmacists to use professional discretion to deny medication to people they suspect are trying to circumvent state laws restricting abortion, the report said.

CVS released this comment: "We're committed to supporting women's health care and our highest priority is ensuring safe and timely access to medications.  However, laws in select states restrict the dispensing of medications that may be prescribed for the purpose of inducing an abortion. Our pharmacists, like other healthcare providers, are caught in the middle on this issue. In certain cases, they may face criminal charges for dispensing medications for this purpose. We will cooperate with any government inquiry on this complex issue." 

No one with Walgreens returned a request for comment.

WHY THIS MATTERS

In its June ruling, the Supreme Court left legislation regarding abortions up to individual states. The absence of a federal abortion law has muddied the waters about what is constitutionally legal in each state.

Physicians, especially those working in the ER, have expressed concern over what they are legally allowed to do for emergency treatment and care. Almost three quarters said they were unclear on what constitutes a life-threatening emergency that would allow them to legally perform an abortion in states where it is otherwise banned.

The impact on hospitals includes Emergency Medical Treatment and Labor Act obligations, maternal healthcare and the clinician-patient relationship.

HHS has repeatedly released guidance to providers, along with a letter to governors and a proposed rule to ensure patient access to reproductive healthcare. 

In the July letter, Becerra emphasized that the Emergency Medical Treatment and Labor Act protects providers when they are offering legally mandated, lifesaving or health-saving abortion services as stabilizing care for emergency medical conditions.

HHS also issued guidance to roughly 60,000 U.S. retail pharmacies clarifying 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 July guidance said.

However, CVS's comment makes clear that it feels its pharmacists, like other healthcare providers, are caught in the middle on this issue. 

THE LARGER TREND

HHS Office of Civil Rights has said that discrimination against pregnant people on the basis of their pregnancy or related conditions is a form of sex discrimination. 

It gave as an example: "An individual experiences an early pregnancy loss (first-trimester miscarriage) and their healthcare provider prescribes pretreatment with mifepristone (a progesterone blocker that can end a pregnancy that is less than 10 weeks) followed by treatment with misoprostol to assist with the passing of the miscarriage. If a pharmacy refuses to fill the individual's prescription – including medications needed to manage a miscarriage or complications from pregnancy loss, because these medications can also be used to terminate a pregnancy – the pharmacy may be discriminating on the basis of sex."

ON THE RECORD

OCR said in its guidance to pharmacies: "The United States has the highest maternal mortality rate among developed nations; though most maternal deaths in the United States are preventable, they have been rising over the last two decades.  Maternal deaths are especially high among Black women and Native American women – regardless of their income or education levels. The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization will exacerbate these inequities and disparities for women across the country. Further, the early loss of pregnancy (before 13 completed weeks) is extremely common, experienced by about 10% of those who know they are pregnant. 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."

Twitter: @SusanJMorse
Email the writer: SMorse@himss.org