U.S. Court in Texas Says HHS’ Revised Pharmacy Guidance on Abortion Medication Moots Challenge
- April 12, 2024
The U.S. District Court for the Western District of Texas nixed April 5 a challenge to administration guidance warning pharmacies that refuse to fill prescriptions for medications that could also be used to terminate pregnancy may violate federal anti-discrimination laws and put their federal funding at risk.
The court granted summary judgment to the government, finding the action was moot because a revision to the guidance clarifying it does not require pharmacies to fill prescriptions for abortion purposes provided the “precise relief” sought by the state of Texas and a North Dakota pharmacy in the lawsuit.
“Plaintiffs have received everything they asked for; they should take the win,” the court said.
The Department of Health and Human Services (HHS) Office for Civil Rights issued the challenged guidance in July 2022, shortly after the Supreme Court decision in Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022), after reports that some pharmacies were denying women access to certain drugs to manage a miscarriage or complications from pregnancy loss or for other conditions like rheumatoid arthritis because the medications also could be used for ending a pregnancy.
According to the guidance, “[d]iscrimination against pregnant people on the basis of their pregnancy or related conditions . . . is a form of sex discrimination.”
In its lawsuit, filed in February 2023, Texas characterized the guidance as an attempt to impose a duty on pharmacies to dispense abortifacients in violation of state law. Mayo Pharmacy also contended the guidance ran afoul of the Religious Freedom Restoration Act.
The court, in July 2023, denied the government’s motion to dismiss, rejecting its attempt to characterize the guidance as only “address[ing] situations in which a pharmacy would fail to fill a prescription for non-abortion purposes.” The court also sharply criticized the administration, noting the guidance’s temporal proximity to Dobbs—issued two weeks after the decision—and its tie to the administration’s policy goal of ensuring access to medication abortion as stated in various executive orders issued by President Biden. Texas v. United States Dep’t of Health and Human Servs., No. 23-CV-00022-DC (W.D. Tex. July 12, 2023).
Following the court’s ruling, HHS revised the guidance to spell out that it “does not require pharmacies to fill prescriptions for medication for the purpose of abortion.” The court agreed with the government that the revision mooted the instant action.
Texas argued that the revised guidance would still force pharmacies to choose between complying with the state’s abortion laws—under which a pharmacy faces criminal prosecution for filling prescriptions for medicines knowing they will be used for abortion purposes—and potential OCR enforcement.
But the revised guidance clearly states that pharmacies have no obligation to fill prescriptions for medication in violation of state law, making it hard to envision a conflict, the court said.
Moreover, the government confirmed in questioning from the court that OCR would not take enforcement action against a pharmacy that refuses to fill a prescription for methotrexate for a visibly pregnant woman, even if the prescription is written as a treatment for rheumatoid arthritis.
The government also confirmed it would not take enforcement action even if the pharmacy’s reason for not dispensing the drugs was because the woman was pregnant.
“[E]ven when the prescription is ‘for non-abortion purposes,’ if filling that prescription would violate Texas law or Mayo's sincerely held religious beliefs, Defendants' stated position is that any complaint under those circumstances would be ‘quickly rejected,’” the court said, noting plaintiffs “appear to have received everything they request.”
Texas v. United States Dep’t of Health and Human Servs., No. 23-CV-00022-DC (W.D. Tex. Apr. 5, 2024).