HHS Guidance for Pharmacists Following Supreme Court Abortion Decision Creates Confusion

In an interview with Pharmacy Times, Ron Lanton III, Esq., discussed the recent guidance for pharmacists released by the Department for Health and Human Services. Although the guidance has created some confusion around pharmacists’ responsibilities on the federal and state levels, Lanton said it will take time to find cohesive solutions.

Aislinn Antrim: Hi, I'm Aislinn Antrim with Pharmacy Times. I'm here again with Ron Lanton, partner at Lanton Law, this time to discuss the recent HHS guidance for pharmacists following the Supreme Court decision in June in Dobbs V. Jackson. So, the Supreme Court decision created a lot of confusion for health care providers in general, including pharmacists. To try and solve some of that, the HHS Office for Civil Rights released guidance for pharmacies. Can you discuss what exactly this guidance is?

Ron Lanton III, Esq.: Sure. The guidance was released on July 13, so if you haven't seen it, that's the date that you can go look up if you want to just Google “July 13, HHS guidance” on this issue. And it was to all the US retail pharmacies, and it just reminded them of the obligations that they had under federal civil rights law, which is very important, because there is a lot of conflicting information out there, as you had said. So basically, what does this guidance mean? Well, it makes clear that as recipients of any federal financial assistance, so they get federal funds, including Medicare and Medicaid payments, pharmacies are prohibited under law from discriminating based on race, color, national origin, sex, age, disability, in their programs and activities. Added include supplying and prescribing medications, making any kind of determinations regarding the suitability of a prescribed medicine for a patient, and advising a patient about a prescribed medicine and how to take them.

I mean, we all know what happened, we have the decision from the Supreme Court. So, okay, we have a lot of different states that feel very differently about this issue, and how are they going to regulate that? So, you're having a lot of different results happen, which we kind of knew was going to happen based on how the Supreme Court wrote the decision, because, in a lot of aspects, it was very ambiguous about what should be and what should not be. So, you're having a lot of states fill in the gaps themselves and some states are saying, “Well, it doesn't really matter what the federal government says, this is how we feel about it and this is the way that it's going to be regulated.”

I remember seeing something a while back from the National Community Pharmacists Association, NCPA, where they were saying, don't put us in the middle of this because we have our directives on what we know is good for the federal level. But you have states that are requiring something different, so it’s really on the states to tell us what it is that we need, because with the pharmacy license, it's by that particular state regulation. So right now, we're in this battlefield. But I know HHS wanted to put something out in order to provide some kind of leadership and guidance on what it is that we need to do.

Aislinn Antrim: Definitely. The guidance has raised a few important questions. So, firstly, it seems to conflict with some state laws around whether pharmacists can dispense certain medications to patients, or whether it's discriminatory to not dispense medications to a patient because of their sex or pregnancy status or another reason. Can you discuss this apparent conflict?

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