WASHINGTON — The Biden administration on Wednesday warned the nation’s 60,000 retail pharmacies that they risk violating federal civil rights law if they refuse to fill prescriptions for pills that can induce abortion, the second time this week it has used its executive authority to establish confrontations. with states where abortion is now illegal.
In four pages of guidance, the federal Department of Health and Human Services flagged a number of conditions, including miscarriage, stomach ulcers and ectopic pregnancy, that are commonly treated with drugs that can induce abortion. It warned that not dispensing such pills “may be discriminatory” on the basis of gender or disability.
The guidance came two days after Xavier Becerra, President Biden’s health secretary, instructed hospitals that even in states where abortion is now illegal, federal law requires doctors to perform abortions for pregnant women presenting to your emergency department if they believe it is “necessary stabilizing treatment” to resolve an emergency medical condition.
The back-to-back actions make clear that while Mr. Biden’s authority to preserve access to abortion is limited after the Supreme Court struck down the constitutional right to the procedure last month, he will push those limits where he can. Legal experts on both sides of the issue agreed in interviews that the administration was trying to assert that federal law preempts that of states that have banned abortion, a move that would almost certainly be challenged in court.
“They’re trying to identify federal statutes that will somehow supersede state restrictions and bans on abortion,” said Lawrence O. Gostin, a public health law expert at Georgetown University. On the guidance for pharmacists, he said: “The obvious goal is to have abortion medications in stock to treat a variety of medical conditions and be available for an abortion.”
However, the new guidance is cautiously written and avoids telling pharmacies that they must provide medication for medical abortion, which is prohibited or restricted in certain states. The guide also does not address how a provision in federal law called Church Amendments would apply. That measure allows health care providers, including pharmacists, not to perform or assist in abortions if they have religious or moral objections.
At issue are three drugs, mifepristone, misoprostol, and methotrexate, which are often prescribed for other conditions but can also induce abortions. Experts said the administration was reacting to reports that women of childbearing age are being denied drugs after the ruling.
Mifepristone is used to treat certain patients with a hormonal disorder called Cushing’s syndrome, and misoprostol is prescribed for ulcers. But they are also approved by the Food and Drug Administration as a two-drug combination that can be taken to end a pregnancy during the first 10 weeks and can also be used in combination after a miscarriage. Methotrexate is used to treat autoimmune disorders, such as rheumatoid arthritis, as well as cancer.
“These are very legitimate issues in that people are concerned about having access to basic medicines that they have been receiving for years, just because those medicines have the ability to terminate a pregnancy,” said Alina Salganicoff, director of health policy. of the woman. in the Kaiser Family Foundation. “It doesn’t seem like they’re blocking this for men.”
The administration’s moves are almost certain to be challenged in court, and abortion rights advocates acknowledge it could be a losing battle. If the legal challenges reach the Supreme Court, the administration will have to make its case before the same conservative majority that voted to overturn Roe v. Wade, the landmark legal case that established the right to abortion in 1973.
“They are trying to mandate the stockpiling of abortion drugs and the performance of abortions across the country using tools that do not give the federal government that authority,” said Roger Severino, who led the Office for Civil Rights within the Department. Health and Human Services when Donald J. Trump was president. “They are trying to shoehorn abortion into laws that were clearly not designed to address abortion.”
Wednesday’s action could put drugmakers in a sticky position. The National Association of Community Pharmacists, which represents 19,400 independent pharmacies across the country, said pharmacists “acting in good faith in accordance with the laws of their state” lacked “a clear path forward” and needed more guidance. of the states.
“Very little clarity has been provided by states on how pharmacists should proceed in light of conflicting state and federal laws and regulations,” B. Douglas Hoey, the organization’s executive director, said in a statement. “It is grossly unfair that state and federal governments are threatening to take aggressive action against pharmacists who are only trying to serve their patients within new legal boundaries that are still taking shape.”
A spokesman for Walgreens, one of the nation’s largest drugstore chains, said the company would review the guidelines; I had no further comments.
During a background call with reporters, a Department of Health and Human Services official said that when state and federal laws conflicted, federal law prevailed.
Mr. Biden has been under intense pressure from Democrats and reproductive rights advocates to take bold steps to preserve abortion rights following the court’s decision in Dobbs v. Jackson Women’s Health Organization. Among other things, they have been pressuring him to declare a public health emergency, something his administration seems unwilling to do.
Wednesday’s guidance was issued by the health department’s Office for Civil Rights. Monday guidance for hospitals was accompanied by a letter to health care providersoutlining your responsibilities under the Emergency Medical Treatment and Active Work Act, known as EMTALA, a 1986 law that requires anyone presenting to an emergency department to be stabilized and treated regardless of insurance status or ability to pay.
Mr Severino argued that targeting hospitals “turns EMTALA on its head”, because the law defines an emergency as a condition in which the absence of immediate medical care “could reasonably be expected to endanger the health of the patient, or (in case of pregnancy, the unborn child) in grave danger.” But Mr. Gostin took the administration’s position, saying that in the case of a pregnant woman in distress, the law allowed abortion “if it was necessary to save her life and there was no other way to stabilize her.”