U.S. Court in Texas Won't Dismiss Challenge to Administration's Pharmacy Guidance on Abortion Medication
- July 14, 2023
The U.S. District Court for the District of Texas refused July 12 to dismiss a challenge to administration guidance that pharmacies refusing to fill prescriptions for medications that may be used to terminate pregnancy could violate federal anti-discrimination laws and put their federal funding at risk.
The lawsuit, filed by the state of Texas and a North Dakota pharmacy in February, argued the so-called “pharmacy mandate” was procedurally and substantively unlawful.
The Department of Health and Human Services Office for Civil Rights issued the guidance in July 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, Texas characterized the guidance as an attempt to impose a duty on pharmacies to dispense abortifacients in violation of state law. According to the complaint, the administration’s position conflicted with federal law, was unconstitutional, and was procedurally invalid for failing to comply with notice-and-comment requirements. Mayo Pharmacy also contended the guidance would cause it to violate its sincerely held religious beliefs and therefore ran afoul of the Religious Freedom Restoration Act (RFRA).
The court denied the government’s motion to dismiss and sharply criticized the administration, which it said since the Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022), decision, has taken various steps to undermine the Supreme Court's ruling overturning Roe v. Wade.
The court rejected the government’s 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 noted 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.
“This is clearly agency smurfing,” which the court explained was an attempt to circumvent the Court’s ruling in Dobbs by issuing guidance “threatening enforcement action that the agency can later claim is unrelated to abortion, even though the executive’s policy goal is accomplished by its implementation.”
After finding Texas and Mayo Pharmacy had standing, the court disagreed with the government’s argument that the guidance was “unreviewable” because it was not final agency action.” According to the court, “since its announcement, the Pharmacy Guidance has remained published and unchanged, hanging over Plaintiffs’ heads like the sword of Damocles.” Legal consequences flow from the guidance, including the “chilling threat” of enforcement action, the court said.
In the court’s view, the guidance, along with other similar actions by the administration, amounted to a “not very clever, effort by the executive branch at death by a thousand cuts to the Dobbs ruling.”
The court did transfer Mayo’s RFRA claim to the District of North Dakota as the appropriate venue for that claim.
Texas v. United States Dep’t of Health and Human Servs., No. 23-CV-00022-DC (W.D. Tex. July 12, 2023).