The Post-Roe Reproductive Health Landscape: A Supreme Court Opinion, Executive Order, and Now, Agency Guidance.

Last week, President Biden issued an Executive Order (“Order”) on protecting access to reproductive healthcare services. Part of the Order called upon the Department of Health and Human Service (“HHS”) to identify potential actions to protect and expand access to reproductive healthcare services through outreach, education, promote awareness, and steps to ensure patients receive protections for emergency medical care under the law.

Accordingly, HHS recently issued two pieces of guidance. One piece of guidance serves to clarify that emergency medical care includes abortion services. The other aims to remind the nearly 60,000 retail pharmacies in the country of their obligations under federal civil rights laws. Specifically, this second piece of guidance covers Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act, stating that pharmacies may not discriminate against pharmacy customers on the bases of these laws. Under Section 1557, pharmacies that are recipients of federal financial assistance are not allowed to deny benefits from or exclude pharmacy customers from participating in their health programs. Under Section 504, pharmacy recipients of federal financial assistance programs are prohibited from discriminating on the basis of disability.

The Department issued this guidance to ensure that patients have access to nondiscriminatory health care, which “includes access to prescription medications for reproductive health and other types of care,” stated HHS Secretary Becerra in a press release. The Department stated that pharmacies are often the most accessible health care providers for individuals in the United States and therefore play one of the most important roles in the post-Roe era. The Department also gave examples of practices that may be considered discriminatory under federal civil rights law, one of which involves a situation where mifepristone and misoprostol would be prescribed. In a situation where a person has a first-trimester miscarriage and is prescribed mifepristone and misoprostol to assist with the passing of the miscarriage, if a pharmacy then refuses to fill the prescriptions, the pharmacy may be discriminating on the basis of sex.

While the issued guidance is not binding and does not carry the force of law, it is important for pharmacies and healthcare providers to know their role as more information about reproductive health becomes available. Boesen & Snow has the resources and knowledge to assist clients with the changing landscape surrounding these issues. Contact us at (602) 900-8562 for more information.