Most patients eventually obtain their medications — in some cases after traveling to several pharmacies — but the extra steps can delay access for hours or days.
Three months after the Supreme Court overturned Roe v. Wade, the country’s leading organizations representing physicians and pharmacists told POLITICO that broad and vague language in many states’ anti-abortion laws – many of which were written years or, in some cases, decades before the court ruled – are blocking patients from accessing medications that have nothing to do with abortion or contraception and are frightening providers who said they feel caught between legal risks and tending to patients.
While medical and advocacy groups are struggling to gather precise data on how often this is happening, they said the reports filtering up from members are alarming.
“These are not just rare anecdotes,” said Jack Resneck, the president of the American Medical Association. “The quantity we’re hearing — and we know we’re only hearing a tiny fraction of what’s going on — is significant.”
The AMA and other medical groups are calling on states that have passed near-total abortion bans to either roll them back or issue guidance that protects doctors and pharmacists from prosecution if they prescribe or dispense drugs that have multiple uses. And in states debating new limits on abortion, they’re trying to make sure more exemptions and protections for medical workers are included.
“What we really need is for states to withdraw some of these laws, and if they’re refusing to do that, we at least need them to clarify the things they don’t intend to get caught up in these laws,” said Resneck. “I just can’t sugarcoat how dangerous this is for our patients.”
Under state and federal laws, individual pharmacists have long been able to refuse to dispense abortion pills, contraception or other medications they felt clashed with their religious beliefs — as long as they directed patients to someone else who would fill their prescription.
But medical and patient advocacy groups say these isolated incidents have exploded following the Supreme Court’s ruling overturning Roe. Because roughly a dozen states now ban nearly all abortions — with narrow and often vaguely worded exemptions for life-threatening situations — pharmacists who have no religious objections to abortion or contraception say they fear prosecution if they dispense drugs that could be used to terminate a pregnancy, and their employers are implementing blanket policies designed to give them legal cover that hamper patient access to a range of medications.
While anti-abortion advocates don’t dispute that the problem is occurring, they argue doctors and pharmacists are at fault for misinterpreting the laws and exaggerating the repercussions.
“The pharmacists need to read their state laws,” said Donna Harrison, the CEO of the American Association of Pro-Life Obstetricians and Gynecologists. “There is no state law anywhere in the country that prohibits the dispensing of drugs to treat other conditions. The state bans are bans on using a drug or device or procedure for the purpose of ending a life in the womb. It’s very clear that if you’re giving a drug for arthritis, that’s not for ending the life of a human being in the womb.”
Asked about instances in which pharmacists aren’t able to easily determine a patient’s purpose for taking a drug, Harrison responded: “The pharmacist isn’t required to confirm whether or not someone is pregnant. They’re not licensed to make diagnoses. That’s the job of the prescriber.”
Yet pharmacy groups told POLITICO that since the fall of Roe they’ve been trapped between state laws threatening prosecution if they dispense certain medications and federal warnings of legal consequences if they don’t. While a doctor’s prescription details the medication, it does not always specify the diagnosis, and pharmacists said the risk of a felony charge or loss of license is too high for them to simply take a patient’s word.
“Our pharmacists are caught in the middle on this issue,” CVS’ Executive Director of Corporate Communications, Mike DeAngelis, said. “While our highest priority is ensuring safe and timely access to medications, we must also ensure our pharmacists are abiding by applicable laws.”
The American Medical Association and other groups said both individual pharmacists and hospital systems and pharmacy chains are, so far, erring on the side of the states — and Resneck and his fellow leaders said that’s causing them to make “non-science based decisions” that deny patients access to the drugs they’ve been prescribed.
Providers and patient advocates note that the extra scrutiny, delays and refusals are falling disproportionately on patients who are women of reproductive age.
And while the groups said they don’t know of any providers who have been prosecuted for filling a prescription, the threat has put the medical community on edge.
“It’s only going to take one state deciding to make one provider an example to have a paralyzing effect across the whole system and whole country,” said Douglas Hoey, CEO of the National Community Pharmacists Association. “We already see that these laws may have been made hastily and without full consideration of the chilling effect it would have on care unrelated to abortion or contraception.”
To shield themselves from prosecution, pharmacists are requiring additional documentation — such as written confirmation of the diagnosis — and questioning patients about why they are getting a particular drug, said Anne Burns, vice president for Professional Affairs at the American Pharmacists Association.
That delay in care can mean some people could go without medication indefinitely, said Tom Kraus, the vice president of government relations at the American Society of Health-System Pharmacists.
“You’re really just subjecting the patient to an additional barrier,” he said. “Some fraction of those people aren’t going to get their prescription filled.”
Steven Newmark, the director of policy at the Global Healthy Living Foundation, which has been documenting instances of medication refusals since Roe was overturned, argued that even temporary delays can be harmful.
“Being forced to go off your medication even for a short time can make the difference between being able to go to work and care for your kids and being at home writhing in pain,” he said. “But we know that as a result of these trigger laws, some of which specifically ban the dispensing of ‘abortion-inducing drugs,’ pharmacists are not going to risk a felony charge.”
Three drugs sometimes used for abortions — misoprostol, mifepristone and methotrexate — are at the center of the debate. Methotrexate is a particular problem, the groups argued, saying that because it is far more likely to be used for non-abortion purposes, pharmacists should err on the side of dispensing the medication.
“Ectopic pregnancy is rare, affecting one to two percent of all pregnancies in the United States yearly. By comparison, 200,000 people are affected by lupus, 1.3 million by rheumatoid arthritis, and 7.5 million by psoriasis in the United States each year,” the Global Healthy Living Foundation wrote to the governor of Texas earlier this month. “As a result, chronic illness patients bear most of the burden of legislation like S.B. 4,” Texas’s law that prohibits the distribution of medications that cause abortions.
Texas Alliance for Life — one of the groups that pushed for S.B. 4 and the state’s near-total abortion ban — acknowledged the problem but pointed to language in the law that stipulates it’s only a crime if drugs are dispensed “with the intent to cause the death of an unborn child.”
“It’s unfortunate that some patients are not receiving the medications their doctors prescribed because pharmacists can’t navigate and interpret these laws,” said Amy O’Donnell, a spokesperson with Texas Alliance for Life. “Their overreaction in these scenarios may point to the need for the state board of pharmacy to offer further guidance and clarification, because it’s very clear in the law that medications for purposes other than abortion are allowed.”
Texas and 10 other states, however, specifically list methotrexate as an abortion-inducing drug, according to the American Pharmacists Association. And vague laws in other states — many of which were drafted long before many of the drugs in question were even developed — can have the same effect for pharmacists concerned about any medication that could be used for abortion.
In Arizona, for example, a law passed in 1864 that had been blocked for half a century by Roe v. Wade went into effect this month, and prohibits all abortions from the moment of conception except in cases when the patient’s life is at risk.
And in Indiana, where state GOP leaders are fighting in court to enact the country’s first new abortion restrictions since the Supreme Court’s June ruling, abortions are allowed in cases of rape or incest during the first 10 weeks of pregnancy, when the fetus is diagnosed with a lethal anomaly, and when needed to protect the life or health of the parent. The penalty for violating the law includes the loss of one’s medical license. But pharmacists in the state say they remain unsure how much risk they would take on if it’s allowed to take effect.
“If more clarity is needed it would be around whether the pharmacist actually has a duty to inquire what the purpose of the prescription is if it’s unclear,” said Darren R. Covington, the Executive Vice President of the Indiana Pharmacy Association. “Because right now that’s just happening out of an abundance of caution.”
Covington added that the increased adoption of electronic prescriptions helps the situation because they tend to include diagnosis codes, but that many are still called in the old fashioned way and lack that key information.
The effects of the laws can also reach beyond state borders, Burns said. Providers are concerned that, even if there is no ban in their home state, they could be prosecuted if the drugs they prescribe are taken to another state where restrictions are in place.
And in states where abortion remains legal, providers say their patients who depend on misoprostol, mifepristone or methotrexate to treat both acute and chronic conditions are unsure of their rights in a post-Roe environment.
“I have patients who are really scared and asking me if they should stockpile methotrexate or switch to another drug just in case,” Belinda Birnbaum, a Philadelphia-based rheumatologist, said. “And I have colleagues who feel a sense of dread every time they prescribe it.”
In response to requests from medical and patient advocacy groups, the Biden administration issued a memo to the nation’s pharmacies in July warning them not to deny patients medications for abortion, birth control, or other drugs they suspect could be used off-label to end a pregnancy. In it, the government warned health workers that refusing to serve patients could put them in legal jeopardy and cost them their participation in Medicare, Medicaid and other federal programs.
But that guidance put the onus on individuals to file an online report to the agency if they’ve been refused prescribed medication, and the Department of Health and Human Services declined to say whether they’ve received any reports and, if so, whether they investigated or took action.
While Resneck believes the instances of patient denials would be far more rampant had that guidance not gone out, he acknowledges it hasn’t stopped them from proliferating.
Meanwhile, Republicans on Capitol Hill want to roll back the federal guidance altogether and give pharmacists freer rein to refuse to dispense medication if they suspect it could be used to terminate a pregnancy — even in states that have not passed anti-abortion laws.
“Just because you put on a white coat doesn’t mean that you lose your First Amendment rights,” Rep. Buddy Carter (R-Ga.), a pharmacist, said in an interview just before he introduced his House bill earlier this month to rescind the Biden administration’s pharmacy guidance. “I’m hearing from people who are not only morally objected to dispensing abortion pills, but in some cases, it puts them in direct contradiction with state law.”
Carter’s “Pharmacist Conscience Protection Act” says neither states nor the federal government can “penalize, treat adversely, retaliate against, or otherwise discriminate against a specified health care provider” if he or she “declines to store or fill a prescription, or make a referral, for a drug that is approved by the Food and Drug Administration to cause an abortion or that the specified health care provider in good faith believes may be used to cause an abortion.”
Asked about the concerns of the AMA and various pharmacist associations, Carter said his bill wouldn’t imperil access to medication, arguing that pharmacists have good enough relationships with their patients and doctors to be able to distinguish between a prescription for an abortion and one for another purpose.
“I want to assure you that medications for lupus and arthritis and other diseases are going to be available,” he told POLITICO. “Look, when I was practicing pharmacy, I knew – when I would get a prescription for a certain drug – what it was going to be used for. And I knew that when a certain physician that performed abortions wrote a prescription for just one pill, and I refused to fill those prescriptions.”
Yet medical and patient advocacy groups across the country said that kind of discretion doesn’t always work in practice, and the Biden administration is warning that the bill may push pharmacists to violate federal law.
“Patients have the right to access the health care they need, free of discrimination,” Health and Human Services Secretary Xavier Becerra said in a statement responding to Carter’s bill. “The Biden-Harris Administration will vigorously advance and protect women’s rights to essential health care. We won’t hesitate to enforce the law.”