HHS Issues Guidance to Retail Pharmacies on Reproductive Healthcare Services

According to a July 13 press release, following President Biden’s Executive Order on ensuring access to reproductive healthcare, the U.S. Department of Health and Human Services (HHS) issued guidance to approximately 60,000 U.S. retail pharmacies, reminding them of their responsibilities under federal civil rights laws.

The release states that “The guidance makes clear that as recipients of federal financial assistance, including Medicare and Medicaid payments, pharmacies are prohibited under law from discriminating based on race, color, national origin, sex, age, and disability in their programs and activities. This includes supplying prescribed medications; making determinations regarding the suitability of prescribed medications for a patient; and advising a patient about prescribed medications and how to take them. The action is the latest step in the HHS’ response to protect reproductive healthcare.”

Further, “Under Section 1557 of the Affordable Care Act (Section 1557), 42 U.S.C. 18116, recipients of federal financial assistance cannot exclude an individual from participation in, denying them the benefits of, or otherwise subjecting them to discrimination based on sex and other bases (i.e., race, color, national origin, age, and disability) in their programs and activities. Under federal civil rights law, pregnancy discrimination includes discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth.”

HHS has taken a multitude of actions following the Supreme Court’s ruling to ensure access to public healthcare including launching ReproductiveRights.gov; meeting with health insurers, as well as sending them a letter, reminding the industry of its commitment to meet its obligations to provide coverage for contraceptive services at no cost as required by the Affordable Care Act; guidance to patients and providers regarding their security and privacy surrounding seeking information on abortion services, including health information apps; announcing $3 million in funding to strengthen training and technical assistance for the nationwide network of Title X family planning providers; meeting with Michigan Governor Gretchen Whitmer, Oregon Governor Kate Brown, and Maine Governor Janet Mills and state attorneys general to discuss concerns on a state level; and issuing guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA) reiterating that it protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations.

HHS Secretary Xavier Becerra was quoted in the release saying that “We are committed to ensuring that everyone can access healthcare, free of discrimination. This includes access to prescription medications for reproductive health and other types of care.”