Insights

HHS Issues Guidance to Pharmacies on Ensuring Access to Reproductive Healthcare Services


Recently, HHS’ Office for Civil Rights (OCR) released guidance for US retail pharmacies, reminding them of several civil rights laws that impact the pharmacies’ ability to provide reproductive healthcare services.

The guidance points out that maternal deaths have increased over the last twenty years, particularly among Black and Native American women. OCR asserts that the recent Dobbs decision will increase the inequities and disparities for women. OCR is responsible for protecting the rights of women and pregnant people and making sure that their access to healthcare (including reproductive healthcare) is free from discrimination. Pharmacies supply medications and related services that are a part of a woman’s reproductive healthcare, so the guidance touches on the federal laws that outline pharmacies’ nondiscrimination obligations.

First, the guidance touches on Section 1557 of the Affordable Care Act, which prohibits recipients of federal assistance from excluding an individual from participation in, denying them the benefits of, or otherwise subjecting them to discrimination on the basis of sex and disability, among other bases, in their health programs and activities. Similarly, Section 504 of the federal Rehabilitation Act prohibits recipients of federal assistance from discriminating in all programs and activities on the basis of disability. The guidance concludes that these statutes prohibit pharmacies that receive federal assistance (including Medicare and Medicaid payments) from discriminating against customers, such as supplying medications, making determinations regarding the suitability of a prescribed medication for a patient, or advising patients about medications and how to take them. In addition, pregnancy discrimination (including potential pregnancy, current pregnancy and medical conditions related to pregnancy) is a form of sex discrimination protected by federal civil rights law. Forms of pregnancy discrimination include denying medication.

Finally, the guidance mentions the Church Amendments, civil rights law that prohibits employment-related discrimination against healthcare professionals because they either provided or assisted in the provision of abortion or sterilization services or because they refused to do so. OCR does not provide blanket guidance concerning these laws but considers potential violations on a case-by-case basis.

Employers with plans that include prescription drug services should be aware of this guidance.

Guidance to Nation’s Retail Pharmacies: Obligations Under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services »