Can Pharmacies Refuse To Fill Abortion Pill Prescriptions?

Overturning Roe v. Wade, the landmark Supreme Court case that guaranteed an individual's federal right to an abortion, has triggered a variety of changes and questions throughout the country about the full spectrum of reproductive rights.

As states seek to implement their own local laws surrounding abortion, some of the challenges over reproductive rights are now also playing out in pharmacies. In particular, the battle lines are being drawn around methotrexate and misoprostol. The two drugs are required for medication abortions, but are also used to treat other conditions including cancer and arthritis.

There have also been instances of pharmacists declining to fill prescriptions used for other reproductive purposes, including medications related to the insertion of IUDs. And cases of pharmacy employees declining to sell basic contraception.

Incidents such as these have prompted the U.S. Department of Health and Human Services (HHS) to issue guidance to pharmacies across the country "reminding them of their obligations under federal civil rights laws" when it comes to providing medications and prescriptions related to reproductive rights, according to an HHS press release.

"We are committed to ensuring that everyone can access health care, free of discrimination," HHS Secretary Xavier Becerra said in the press release. "This includes access to prescription medications for reproductive health and other types of care."

Here's a closer look at an individual's rights when it comes to accessing prescriptions and medications related to reproductive health.

What Protections Did the HHS Guidance Include?

The recently issued guidance from HHS is specifically aimed at the nation's 60,000 pharmacies that are recipients of federal financial assistance—such as Medicare and Medicaid payments. Pharmacies receiving this type of assistance are subject to federal civil rights laws and thus forbidden from discriminating in their programs and activities based on race, color, national origin, sex, age, and disability, according to HHS.

"The law that's at issue here is Section 1557 of the Affordable Care Act," Michelle Banker, director of reproductive rights and health litigation with the National Women's Law Center, told Health. "It's the first federal law to broadly prohibit sex discrimination in healthcare."

Section 1557 of the Affordable Care Act makes clear that "recipients of financial assistance are prohibited from excluding an individual from participation in, denying them the benefits of, or otherwise subjecting them to discrimination on the basis of sex and disability" in healthcare programs and activities, according to HHS.

Additionally, under Section 504 of the Rehabilitation Act of 1973 (Section 504), recipients of federal financial assistance—such as pharmacies—are prohibited from discriminating in all programs and activities, on the basis of disability.

Combined these two measures mean that pharmacies receiving federal aid may not discriminate when it comes to supplying medications, or making determinations about a medication's suitability, HHS said.

"Among its civil rights enforcement responsibilities, the Department of Health and Human Services' Office for Civil Rights (OCR) is responsible for protecting the rights of women and pregnant people in their ability to access care that is free from discrimination," the HHS guidance states. "This includes their ability to access reproductive health care, including prescription medication from their pharmacy, free from discrimination."

Pharmacies, continued HHS, may not discriminate against pregnant people on the basis of their pregnancy or related conditions. Doing so is a form of sex discrimination. Under federal civil rights law, pregnancy discrimination includes discrimination "based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth."

Real Life Application of the HHS Guidance

But what does all the legalese in the HHS statement mean in the real world? And what constitutes discrimination exactly? Can pharmacies refuse to fill prescriptions for methotrexate and misoprostol? The agency provided a few important examples of what discrimination might look like for individuals seeking to get needed medications or prescriptions related to reproductive rights, including abortion medication:

• A pharmacist refusing to dispense prescriptions for mifepristone and misoprostol to a patient who suffered a first-trimester miscarriage. These drugs are used to assist with the passing of the miscarriage, according to HHS, but can also be used to terminate a pregnancy. Pharmacies refusing to fill such a prescription for a patient impacted by a first-trimester miscarriage may be discriminating on the basis of sex.
  
• An individual presents a prescription for an emergency contraceptive at their local pharmacy after a sexual assault to prevent pregnancy. If the pharmacy otherwise provides contraceptives, but refuses to fill the emergency contraceptive prescription because it can prevent ovulation or block fertilization, the pharmacy may be discriminating of the basis of sex.
  
• An individual's health care provider sends the individual's prescription for hormonal contraception—such as an oral contraceptive pill, emergency contraception, a patch placed on the skin, a contraceptive ring, or any other FDA-approved contraceptive product—to a pharmacy. If the pharmacy provides contraceptives such as condoms, but refuses to fill a certain type of contraceptive because it may prevent a pregnancy, the pharmacy may be discriminating on the basis of sex.

Additional examples of what might constitute discrimination, according to the HHS, can be found in the agency's full guidance document.

It is important to note however, that the HHS guidance does not apply to pharmacies that do not receive federal funding. And in states where abortion is now largely banned, pharmacies have begun making clear they will not provide prescriptions for abortion medication.

CVS for instance has said it is asking pharmacists in certain states to verify that methotrexate and misoprostol prescriptions will not be used for medication abortions. A spokesman for the company said this new requirement comes in response to state laws that restrict the dispensing of medications used for abortions.

CVS has said it will still fill the prescriptions for miscarriages or ectopic pregnancies, as long as prescriptions indicate the intended purpose.

Can Pharmacists Refuse To Fill Birth Control Prescriptions?

Though the HHS statement is helpful, questions remain about whether federally funded pharmacies can refuse to fill birth control prescriptions. The answer to that question is possibly, said Banker.

If a pharmacy dispenses zero forms of birth control—meaning, they don't sell condoms, other barrier methods, or spermicide—then there's a chance they could refuse to dispense birth control. But, if they sell anything that is used as contraception, "they cannot refuse to dispense birth control without running afoul of section 1157," Banker said.

Can Pharmacists Refuse To Dispense Plan B?

While challenges continue to swirl around abortion medications and reproductive medications that require prescriptions to fill, there's also growing concern about pharmacies refusing to dispense Plan B moving forward.

A form of emergency contraception that contains the hormone levonorgestrel, Plan B is used to prevent ovulation, block fertilization, or keep a fertilized egg from implanting in the uterus. It does not require a prescription, but pharmacies could still try to refuse to supply it to customers.

Under federal law, however, a pharmacy that "otherwise provides comprehensive prescription drug offerings for contraception" such as condoms or barrier methods cannot refuse to provide Plan B to customers, Banker said.

"That would constitute sex discrimination," she added.

What could potentially happen, however, is a particular pharmacist may refuse to dispense the medication, but the store itself will still offer the product—similar to what occurred in Wisconsin when a Walgreens pharmacist who refused to sell condoms on moral grounds. In that case, another employee was called in to complete the transaction.

"There are pharmacists who will refuse to fill Plan B or birth control because of personal or religious reasons," Jamie Alan, Ph.D, associate professor of pharmacology and toxicology at Michigan State University, told Health.

Walgreens reinforced this approach in a recent tweet explaining that their company policy "allows pharmacists to step away from filling a prescription for which they have a moral objection." But, the company added, "at the same time, they are also required to refer the prescription to another pharmacist or manager on duty to meet the patient's needs in a timely manner."

How To Handle Discrimination When It Occurs

If you experience what you believe to be discrimination at a pharmacy, Alan said the next step is to try another pharmacist or pharmacy, even though doing so may require extra time and legwork.

"If a pharmacist refuses to fill, they should, at a minimum, recommend another pharmacist or pharmacy who will fill the prescription for you," Alan said.

It's also important to note that when such issues occur, there's little your doctor can do to help.

"As a doctor, you can write a prescription, but we don't carry these drugs in the office," Lauren Streicher, MD, an associate professor of clinical obstetrics and gynecology at Northwestern University Feinberg School of Medicine, told Health.

There's a chance your doctor may be aware of pharmacies in your area that are less likely to challenge such prescriptions, Dr. Streicher added, but it's not a guarantee.

Filing a complaint with the Office for Civil Rights, is yet another option, said Banker. The office can be reached via phone at (800) 368-1019 or email OCRMail@hhs.gov. It's also possible to file a complaint on the agency's website.

"I would encourage folks to raise a complaint if this happens to them to make the administration aware of what is happening," Banker said.

Finally, individuals also have the federal right to bring a lawsuit against pharmacies that don't comply with the law, Banker said. Those in need of assistance can contact an organization like National Women's Law Center for help and next steps. But Banker stressed that it is important for individuals to make sure they take care of their health first.

"You can't force the pharmacy to follow the law," Banker said. "In those situations, people may have to go to another pharmacy or they may not get the care that they need—and they'll have to suffer the consequences of that."