As experts predicted, the overturning of Roe v. Wade and subsequent banning of abortion in numerous states have had a massive ripple effect on the health care system. Doctors are forced to weigh whether they could be imprisoned for treating patients experiencing a miscarriage. And last week, Jezebel reported on an alarming trend of doctors and pharmacists not filling prescriptions for life-saving medications that are deemed possible “abortifacients.” One hospital temporarily stopped providing emergency contraception to rape victims, apparently erroneously conflating the morning after pill with abortion pills.
On Wednesday, Biden administration officials addressed the latter issue by reminding pharmacists across the country that if they refuse to fill prescriptions for different forms of contraception, abortion medication, or even unrelated medications that could possibly end pregnancies, they could be violating federal civil rights law.
“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,” states the new guidance the Department of Health and Human Services sent to more than 60,000 retail pharmacies this week. Per the Affordable Care Act and the Rehabilitation Act of 1973, pharmacies that receive federal funding can’t discriminate based on views about abortion or other reproductive care.
One specific example of a violation that the guidance provides is a pharmacist refusing to fill a prescription for the abortion pill mifepristone, for someone experiencing an early miscarriage, which mifepristone is used to treat. Of course, even prior to the overturning of Roe, there have been documented cases of pharmacists doing just that, and citing their right to religious freedom—the Trump administration went so far as to enact policies to protect anti-abortion health providers’ right to not do their job, which includes providing health care like abortion referrals.
Biden’s guidance to pharmacies is an important step toward providing clarity and protecting access to vital medications amid the ongoing, seemingly unending post-Roe chaos. The guidance even specifically named methotrexate—a medication that can be used to treat ectopic pregnancies, which occur when an egg implants in the uterus, as well as arthritis, lupus, other rheumatic diseases, and even cancer—as one of the medications pharmacists must provide.
Last week, one Twitter user said two pharmacies had refused to fill their methotrexate prescription, “a life-saving drug for me,” because “it’s an abortifacient.” Another woman shared that she’d been denied a prescription for a low dose of naltrexone—a medication to treat opiate use that’s also been prescribed to those struggling with long covid—because it’s believed to increase the risk of miscarriage.
Even when there was a federal right to abortion, visibly pregnant people in certain states still lived in fear of being investigated or criminalized for using certain medications: Last year, a woman in Alabama was arrested and prosecuted for seeking to fill a prescription for pain medication for debilitating back pain she was experiencing while pregnant with her sixth child. On top of her pregnancy, she was also recovering from complications from a recent surgery and a car accident the year before.
Her story wasn’t an outlier. When pregnant people do experience miscarriage or pregnancy loss for any reason, they’re often subject to criminal investigation and prosecution for possible substance use. Since 1973 when Roe was decided, there have been nearly 2,000 cases, disproportionately targeting people of color, in which pregnancy loss has been criminalized. Health providers are left fearing the risk of criminalization, too. Despite Biden’s Tuesday directive for doctors to offer emergency abortions if someone’s life is at risk, regardless of state law, lack of clarity about what constitutes a risk to someone’s life and when to intervene means doctors could still be criminalized for intervening too early, and pregnant people could still die before receiving care. It’s the gravest lose-lose imaginable.
In 2016, the CDC specifically advised sexually active women who aren’t on birth control to not drink alcohol, period—whether or not they were even pregnant, or even planning to be pregnant—to avoid the risk of fetal alcohol syndrome. The message has always been clear: Women and people with uteruses are either pre-pregnant, or pregnant, and our health and bodily decisions are to be scrutinized and regulated accordingly. The end of Roe has simply opened the door for all of this institutionalized paternalism to get infinitely worse, and certainly more dangerous.