March 2, 2023

Texas Sues to Challenge Federal Guidance Asserting that Refusal to Fill Prescriptions for Certain Drugs Used to Manage Reproductive Health and Other Conditions May Violate Anti-Discrimination Laws

On February 7, 2023, Texas filed a lawsuit against the Biden administration challenging guidance issued by the Department of Health and Human Services (“HHS”) to retail pharmacies in June of last year. HHS’s guidance sought to “remind the roughly 60,000 retail pharmacies in the United States of the unique role pharmacies play in ensuring access to comprehensive reproductive health care services,” and asserted that pharmacies refusing to fill certain prescriptions could be violating federal anti-discrimination laws.

Following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, patients reported that some pharmacies were refusing to fill prescriptions for medications that are used to manage miscarriages, as well as for certain drugs that are used to treat conditions like rheumatoid arthritis but which can also be used to end a pregnancy.

The guidance document gave several examples to illustrate potentially prohibited behavior. For example, if a patient is prescribed mifepristone and misoprostol to help manage a miscarriage, a pharmacy that refuses to fill such a prescription may be engaging in impermissible discrimination on the basis of the patient’s sex. Additionally, a pharmacy’s refusal to fill a prescription for methotrexate for a patient with rheumatoid arthritis (because that drug can also cause the termination of a pregnancy) could be considered discrimination on the basis of a patient’s disability.

The Texas lawsuit asks the court to find that the “pharmacy mandate,” as it refers to HHS’s guidance, is unlawful and unenforceable. A press release from Attorney General Paxton’s office states that “the Supreme Court’s June 2022 Dobbs decision made clear that laws governing abortion are to be decided by state lawmakers, not the federal government” and that HHS’s guidance “runs contrary to Dobbs by unlawfully preempting certain states’ laws that bar pharmacies from supplying these abortion-inducing drugs.”

This case is just one of several lawsuits related to a patient’s ability to access reproductive health care. Given the uncertainty surrounding ongoing litigation, conflicting federal and state guidance in the wake of Dobbs, and the variation in abortion restrictions from state to state, this area of the law is expected to remain in flux for some time. Health care providers and pharmacies should continue to work closely with legal counsel to ensure they remain in compliance with this constantly evolving landscape.