Pharmacies can’t refuse to provide abortion drugs or contraception, Biden warns

President Biden’s administration is telling America’s pharmacies that they can’t refuse to provide contraception or medication that could end a pregnancy.

Health & Human Services Secretary Xavier Becerra sent a letter Wednesday outlining the responsibilities of the nation’s 60,000 pharmacies under federal law. He said the agency would go after those who violate the law.

It’s the latest step announced by the Biden administration in the wake of the Supreme Court’s ruling ending abortion rights nationwide, leaving the issue up to the states.

“We are committed to ensuring that everyone can access health care, free of discrimination,” Becerra said in the statement. “This includes access to prescription medications for reproductive health and other types of care.”

This week, the Biden administration also told hospitals that they must provide abortion services to save the life or preserve the health of the patient, regardless of any state restrictions. Health providers that don't comply could risk the loss of federal funds.

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In the letter to pharmacies, Becerra said the department’s Office for Civil Rights would take action against pharmacies discriminating against patients. Officials for CVS and Walgreen’s told CNN they would be reviewing the administration’s guidance.

The health department also told consumers if they feel their civil rights have been violated, they can file a complaint with HHS.

Becerra’s letter outlined several examples, including a scenario where a patient seeks emergency contraception after a sexual assault to prevent pregnancy.

“​​If the pharmacy otherwise provides contraceptives (e.g., external and internal condoms) but refuses to fill the emergency contraceptive prescription because it can prevent ovulation or block fertilization, the pharmacy may be discriminating of the basis of sex,” the letter states.

The health department also provided a scenario of a patient in a hospital emergency with a miscarriage complicated by a uterine infection (often referred to as a septic abortion).

If a doctor order an antibiotic and the hospital pharmacy won’t provide it because of concern that treatment may include uterine evacuation via medical or surgical abortion, “the pharmacy may be discriminating on the basis of sex,” Becerra wrote.

Another example describes a patient with a miscarriage in the first trimester who is prescribed mifepristone followed by treatment with misoprostol to assist with the passing of the miscarriage.

“If a pharmacy refuses to fill the individual’s prescription—including medications needed to manage a miscarriage or complications from pregnancy loss, because these medications can also be used to terminate a pregnancy—the pharmacy may be discriminating on the basis of sex,” Becerra wrote.

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The health secretary noted America’s maternal mortality rate is the highest in the developed world. “The Department is committed to improving maternal health—including for individuals who experience miscarriages—and vigorous enforcement of our civil rights laws is one way in which we plan to do so,” Becerra wrote in the letter.

Pharmacies could also be violating the law if they don’t carry misoprostol to deal with other conditions, such as treatment for severe stomach ulcers. “An individual experiences severe and chronic stomach ulcers, such that their condition meets the definition of a disability under civil rights laws. Their gastroenterologist prescribes misoprostol to decrease risk of serious complications associated with ulcers.  If the pharmacy refuses to fill the individual’s prescription or does not stock misoprostol because of its alternate uses, it may be discriminating on the basis of disability,” Becerra wrote.

“The Department is committed to improving maternal health—including for individuals who experience miscarriages—and vigorous enforcement of our civil rights laws is one way in which we plan to do so,” Becerra wrote in the letter.

The health secretary’s letter said the administration’s guidance does not address how the Church Amendments would apply in specific cases. The federal provisions protect healthcare personnel from workplace discrimination for refusing to provide abortion services based on religious or moral views. The amendments also protect healthcare workers from discrimination for performing or assisting with abortion services.

The HHS civil rights office “will evaluate and apply the Church Amendments on a case-by-case basis,” Becerra wrote.

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Biden issued an executive order on abortion rights last week. The order doesn’t overturn any state laws barring abortion services, but it directs HHS to expand access to medication abortion and contraception, along with public education efforts on abortion rights.

The Biden administration has also urged healthcare providers to protect the privacy rights of patients.

Several states have already passed laws barring abortion procedures, and analysts expects as many as 26 states will prohibit abortion within the next several months.