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Biden administration says pharmacists cannot deny contraceptives

Move aims to thwart pharmacists who deny women prescribed medications because of personal views about contraception or abortion

Sens. Lisa Murkowski, R-Alaska, left, and Susan Collins, R-Maine, are among a small bipartisan group of lawmakers working on legislation to enshrine rights to abortion and contraception into law.
Sens. Lisa Murkowski, R-Alaska, left, and Susan Collins, R-Maine, are among a small bipartisan group of lawmakers working on legislation to enshrine rights to abortion and contraception into law. (Tom Williams/CQ Roll Call)

In the latest salvo aimed at responding to a June 24 Supreme Court decision overturning the federal right to an abortion, the Biden administration Wednesday told pharmacists that they will violate federal civil rights laws if they deny women prescribed medications because of personal views about contraception or abortion.

The Department of Health and Human Services sent guidance to roughly 60,000 retail pharmacies reminding them of their legal obligation under federal civil rights laws to dispense medication as prescribed, including contraceptives and medication for women experiencing pregnancy loss or needing a medication abortion.

Any individual who experiences such discrimination can file a complaint with the agency’s Office for Civil Rights.

Under the nondiscrimination clause of the 2010 health care law, recipients of federal financial assistance, such as Medicare and Medicaid, are prohibited from denying health care based on sex, race or disability. This applies to pharmacies distributing medication and making determinations regarding the suitability of prescribed medication for a patient.

Federal laws preempt state laws that limit abortion care or contraception, a senior HHS official told reporters.

Since the Supreme Court overturned Roe v. Wade, 18 states have implemented polices restricting abortion care, and several others are expected to follow, according to the Kaiser Family Foundation.

“This is meant to remind folks of their obligations when they take federal funding and to remind folks of obligations under federal civil rights laws,” a senior HHS official told reporters.

The agency said it has received complaints from several patients and physicians regarding pharmacists who refused to distribute prescriptions because of their views on abortions.

But the issue isn’t just limited to red states.

Karen Meckstroth, an OB-GYN and professor at the University of California, San Francisco said that she’s had patients experience these same issues in more rural parts of California. Because prescriptions don’t necessarily include a diagnosis code, pharmacists do not know the reason a person is picking up a medication.

“We’ve had multiple stories of people being given lectures or pharmacist refusing to dispense it because they won’t participate in abortion, even for miscarriages,” Meckstroth said.

Because of issues at pharmacies, Meckstroff’s practice now distributes misoprostol in their clinic, rather than sending prescriptions to pharmacies.

In many parts of America, a local pharmacist is one of the community’s main health care providers, as most Americans live within five miles of a pharmacy but much further from their nearest doctor or hospital. If a pharmacy were to deny needed care, it would be in direct conflict with the HHS Office for Civil Rights.

For example, a pharmacist who refused to provide misoprostol and mifepristone to a miscarrying woman because those medications are also used to abort a viable fetus would be discriminating on the basis of sex. A pharmacist would also be discriminating on the basis of sex if they refused to prescribe methotrexate to halt pregnancy when a woman is experiencing an ectopic pregnancy.

But these pharmacists could also be discriminating on the basis of disability. Drugs commonly used to treat abortion and miscarriage can also be used for other conditions. Some people with chronic stomach ulcers take misoprostol, and some individuals with rheumatoid arthritis take methotrexate.

Hill focus on abortion

The latest HHS announcement comes less than a week after President Joe Biden issued a wide-ranging executive order to protect abortion access. Lawmakers on Capitol Hill are also focusing on the issue.

But Democrats still want the Biden administration to do more.

On Wednesday, House Ways and Means Health Subcommittee Chairman Lloyd Doggett and Rep. Lizzie Fletcher, both Texas Democrats, led a group of 83 lawmakers in a letter to Biden and HHS Secretary Xavier Becerra seeking both an emergency declaration and a public health emergency declaration.

House Appropriations Chairwoman Rosa DeLauro , D-Conn., said Wednesday that the House intends to vote on its Labor-HHS-Education spending bill during the last week of July before it leaves for recess. The bill seeks to remove two long-standing riders sought by abortion rights supporters — the Hyde and Weldon amendments. Both are cited by Democrats as key barriers in expanding access to abortion.

The House will vote on two abortion rights bills this week. DeLauro said other measures could also be under consideration but did not expand on what legislation that could include.

“The Biden administration has come forward with an executive order,” she said. “We know that we have to try to do some things in the Congress or working in concert with the Biden administration.”

Meanwhile, the two Republicans in the Senate who support abortion rights, Lisa Murkowski of Alaska and Susan Collins of Maine, are trying to get something done in the Senate.

Murkowski said during a Senate Health, Education, Labor and Pensions hearing on abortion Wednesday that she is working with a small bipartisan group of lawmakers on legislation to enshrine rights to abortion and contraception into law. Collins is involved in the effort.

While the bill is unlikely to pass in the 50-50 Senate, Murkowski cautioned against getting rid of the filibuster.

“Do we really believe that a different majority would not seek a nationwide ban on abortion and find a way to succeed in enacting it?” she said.

During that hearing, other Republicans argued that concerns about the impact of abortion bans on miscarriage treatment and pregnancy care are overblown, noting that state laws include exemptions to save the life of the mother.

“No abortion law in any state in America prevents treatment for women with ectopic pregnancies or any other life-threatening conditions,” said Sen. Roger Marshall, R-Kan., an OB-GYN who stepped in for the committee’s top Republican to talk about his experiences.

However, doctors have argued the “life of the mother” language is often vague and leaves them to make difficult decisions, opening them up to legal action, including in states where performing abortions is a felony.

“It’s incredibly hard to think about being in that position where I can’t intervene because I have to call my lawyer first to make sure it’s okay, or that I’m going to wait and wait and wait until someone gets sicker and sicker because I don’t know what that law means,” Kristyn Brandi, a family planning doctor and board chair of Physicians for Reproductive Health, told the committee.

On Thursday, Senate Democrats are expected to make a bid to take up legislation by unanimous consent to protect interstate travel to seek an abortion. The House plans to consider a similar bill as well as legislation that would codify the right to abortion.

At a House Oversight and Reform Committee hearing Wednesday, Rep. Jamie Raskin, D-Md., asked Michigan State Sen. Mallory McMorrow about the importance of interstate travel — alluding to a bill he helped spearhead with Fletcher and Rep. Marilyn Strickland, D-Wash., on the House floor this week.

“I do think it’s important,” she said, but added that the problem is broader than interstate differences.

Michigan’s attorney general does not intend to enforce a 1931 abortion ban, but cannot compel county level prosecutors to do the same — meaning in Michigan, where you can access an abortion may come down to your zip code, she said. 

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