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Denying Miscarriage Drugs Triggers Bias Law, Pharmacies Told (1)

July 13, 2022, 5:16 PMUpdated: July 13, 2022, 6:57 PM

Pharmacists who refuse to fill medications for miscarriage management may be violating federal anti-sex discrimination laws, the HHS said in guidance Wednesday.

The guidance marks the latest effort by the Biden administration to ensure access to reproductive health care and other treatment in the wake of the Supreme Court’s ruling overturning Roe v. Wade.

The Department of Health and Human Services’s guidance applies to roughly 60,000 retail pharmacies across the US that receive federal financial assistance, including through Medicare and Medicaid. It says that those pharmacies must comply with laws prohibiting discrimination on the basis of race, sex, age, and disability when making determinations on the suitability of prescribed medications.

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

A senior HHS official said in a call with reporters Wednesday that the guidance came in response to reports the HHS Office for Civil Rights received of patients being denied medications for miscarriages, ectopic pregnancies, or conditions like rheumatoid arthritis because of the drug’s risks of pregnancy loss. The guidance intends to remind pharmacists that denying medication or treatment based on a patient’s current pregnancy, past pregnancy, or potential to get pregnant is a form of sex discrimination prohibited by federal law. The HHS also said refusing to refill medications for inflammatory chronic conditions may be considered disability discrimination.

The HHS official wasn’t able to provide a total number of complaints received, but said anyone who believes they have been subjected to a violation of civil rights laws should file a complaint on the office’s website or email it directly.

Sex, Disability Protections

Pharmacies shouldn’t deny certain treatment that a health provider deems medically necessary based on the drug’s other uses or potential to cause pregnancy loss, HHS said Wednesday.

Mifepristone and misoprostol, for example, can be used to terminate an early pregnancy, and are also sometimes prescribed to manage first-trimester miscarriages. HHS said in its guidance document that refusing to fill an individual’s prescription “to manage a miscarriage or complications from pregnancy loss, because these medications can also be used to terminate a pregnancy,” may be considered sex discrimination.

Pharmacies may also be discriminating on the basis of disability if they refuse to fill a prescription for misoprostol for a patient taking it to reduce the risk of ulcers caused by chronic use of anti-inflammatory medications, HHS said.

The guidance also states that federal disability protections would apply to patients with rheumatoid arthritis or other inflammatory conditions who are prescribed methotrexate. The drug is one of the most commonly used in rheumatology, but is listed as an abortion-inducing drug in some states, including Texas, because of its risks of pregnancy loss and use to treat ectopic pregnancies.

Providers and patients across the country have shared stories of pharmacies denying them prescriptions for misoprostol, including some who needed the medication after incomplete miscarriages. There have also been reports of problems getting methotrexate, especially among women of childbearing age who take the medication to manage chronic pain from conditions like lupus and inflammatory arthritis.

The HHS said anti-sex discrimination laws may also apply to pharmacies refusing to fill prescriptions for emergency and hormonal contraceptives because they may prevent pregnancy. If pharmacies receving federal assistance don’t fill these, but otherwise provide contraceptives in the form of external or internal condoms, they could be violating civil rights laws, according to the guidance.

Administration Actions

The guidance to pharmacies is just the latest in a wave of administrative actions since the Supreme Court’s ruling triggered a wave of state laws banning or severely restricting abortion.

President Joe Biden signed an executive order July 8 which in part directed HHS to submit a report to the president within the next month about efforts to ensure the availability of abortion pills, contraception, and emergency medical care for pregnant individuals. He also instructed HHS to detail outreach and public education efforts intended to give Americans accurate information on how they can legally access abortion and other reproductive health care post-Roe.

The HHS issued guidance June 29 telling doctors and other health-care providers they cannot disclose information about a patient’s pregnancy or abortion unless state laws or a court require them to do so. The department also published a guide for how consumers can protect their personal health data on mobile apps, which aren’t usually covered by HIPAA.

The Centers for Medicare & Medicaid Services also issued guidance July 11 clarifying for providers that the Emergency Medical Treatment and Labor Act allows them to carry out abortions in life-or-death situations, and that this law supersedes any restrictions a state may have on the procedure.

(Updates with additional information on administration guidance related to abortion and health care.)

To contact the reporter on this story: Celine Castronuovo at ccastronuovo@bloombergindustry.com

To contact the editors responsible for this story: Alexis Kramer at akramer@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com