OCR Provides Guidance to Pharmacies Regarding Ensuring Access to Reproductive Health Care Services In the Wake of Dobbs

On July 13, 2022, the U.S. Department of Health and Human Services Office of Civil Rights (“OCR”) published guidance reminding retail pharmacies of the role they and their pharmacists play in ensuring access to comprehensive reproductive health care services.

More specifically, OCR states that if retail pharmacies receive federal financial assistance (e.g., participating in Medicare or Medicaid), they are prohibited from denying an individual a benefit under their health plan on the basis of sex and disability, including with regard to supplying medications, or advising a patient regarding the suitability of the medication or how to take them.  According to the OCR, pharmacies may not discriminate against individuals on the basis of their sex or disability by refusing to fill pregnancy-related medications. The following examples were given by OCR as examples of discrimination on the basis of pregnancy, which is a form of sex discrimination:

• Pregnancy loss during the first trimester and the pharmacy refuses to fill the patients’ prescription of mifepristone followed by treatment with misoprostol, which is prescribed to assist with the passing of the miscarriage.
• An individual experiences severe and chronic stomach ulcers, (i.e., a disability under civil rights laws) and the pharmacy refuses to fill the patient’s prescription for misoprostol, or does not stock misoprostol because of its alternate uses.
• A pharmacy refuses to fill a prescription for hemoglobin or hematocrit for an individual with a bleeding disorder who is scheduled for a surgical abortion because the pharmacy is aware that the medication is being taken as a life-saving preventive measure related to a scheduled surgical abortion.
• An individual presents to a hospital emergency department with a miscarriage complicated by a uterine infection and the hospital pharmacy refuses to provide the antibiotic required for treatment because of concern that subsequent care may include uterine evacuation (via medical or surgical abortion).
• An individual is experiencing an ectopic pregnancy and the pharmacy refuses to fill the order for methotrexate to halt the pregnancy.
• A pharmacy refuses to fill the prescription of an individual prescribed methotrexate for their disabling rheumatoid arthritis because of its alternate uses.
• An individual presents a prescription for an emergency contraceptive at their local pharmacy after a sexual assault to prevent pregnancy, but the pharmacy refuses to fill the emergency contraceptive prescription because it can prevent ovulation or block fertilization, if the pharmacy otherwise provides contraceptives such as condoms.
• A pharmacy refuses to fill a prescription for hormonal contraception because it may prevent a pregnancy, if the pharmacy otherwise provides contraceptives such as condoms.

OCR also enforces civil rights laws on behalf of practitioners, including 42 U.S.C. § 300a-7, which protects health care personnel from discrimination related to their employment because they refused to perform or assist in the performance of abortion or sterilization because of their religious beliefs or moral convictions, along with protecting health care personnel from discrimination related to their employment because they performed or assisted in the performance of abortion or sterilization. OCR did not provide examples and instead notes that it will evaluate and apply this statute on a case-by-case basis. If you have any questions, regarding this OCR guidance, please do not hesitate to contact any member of Shipman & Goodwin’s Health Law practice group for assistance.