Biden’s guidance on pharmacists and abortion bans hits back

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The Biden administration says powers under the Affordable Care Act can remove any uncertainty about whether states with abortion bans can influence what drugs pharmacists dispense. But it might not be that easy.

Driving the news: The Department of Health and Human Services on Wednesday released guidance to clarify that pharmacies receiving federal funding can deny people access to prescribed drugs that could be used to terminate a pregnancy, as doing so violates the ACA’s anti-discrimination rules.

  • Some patients, particularly in states that have banned or restricted abortion, have been denied access to cancer treatments and other drugs because they can also be used to terminate a pregnancy.

Context: The ACA says insured providers cannot exclude people from their “programs and activities” on the basis of their race, nationality, age, disability and sex – the latter including discriminating against people on the basis of pregnancy or related medical conditions.

What’s happening: State abortion bans are “vaguely written” and “so extreme” that health care providers and pharmacists are concerned prosecutors will use those laws to prosecute them for helping someone perform an abortion, even by filling out a prescription, said Cary Franklin, professor and faculty director at UCLA Law’s Center on Reproductive Health, Law, and Policy.

  • The HHS policy is “a clear statement of federal law that says pharmacists must not discriminate on these grounds, they are breaking the law if they do, … but as we’ve seen in this area, it’s nothing new and it’s safe to see people pushing the limits and seeing people refusing to obey the law, and pharmacies have been a great site for that kind of disobedience and refusal to obey the law.”

A senior HHS official told reporters On Wednesday, that federal law replaces the state law, and the department will review on a case-by-case basis whether any laws conflict with one another.

  • Yes but: The American Pharmacists Association (APhA) said the HHS’s guidance offers potential examples of when pharmacists’ refusal to dispense a drug to an individual violates a federal law. This type of language makes it “unclear” whether the guidance pre-empts state law.

What you say: The APhA said in a statement that HHS “hastily issued this policy that attacks and undermines the fundamental responsibilities and professional judgment of the pharmacist.”

  • “It only adds more confusion to an already complicated post-Dobbs legal and regulatory landscape that pharmacists must navigate every day to serve our patients,” said Ilisa Bernstein, interim executive vice president and CEO of APhA.
  • “When dispensing medications, pharmacists in certain states may face legal jeopardy under this policy and be forced to question whether they may face conflicting state or federal penalties for serving their patients.”

Between the lines: HHS said its guidance doesn’t address how the so-called Church Amendment – which allows medical workers to refuse to perform or assist in performing an abortion or sterilization based on religious beliefs – to apply in a specific case. The department will evaluate on a case-by-case basis.

  • It also remains unclear how the guidelines would work when considering state “conscience” laws that protect health care providers who refuse to offer certain health cases because of their religion.
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