HHS Issues Guidance on Protecting Reproductive Rights

WASHINGTON — On Wednesday, the U.S. Department of Health and Human Services issued guidance to over 60,000 different retail pharmacies, reminding them that under federal civil rights laws, and as recipients of federal financial assistance, they are prohibited from discriminating based on race, color, national origin, sex, age, and disability in their programs and activities.

Following the executive order President Joe Biden signed last Friday, which aimed to protect access to reproductive health care services, the HHS issued this guidance as a further attempt to reinforce that protection.

In the HHS press release regarding the guidance, they encouraged people to file a complaint if they felt their or someone else’s civil rights had been violated.

“HHS is committed to ensuring that people can access reproductive health care, free from discrimination,” the press release read.

According to Section 1557 of the Affordable Care Act, 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 in their programs and activities.”

Also 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.”

As of July 1, 2022, in six different states — Arizona, Arkansas, Georgia, Idaho, Mississippi, and South Dakota — pharmacists could refuse to distribute contraceptives, such as Plan B or the morning-after Pill, based on their own religious beliefs.

While emergency contraceptives are not prescription based, this could pose a problem to many women in these states if the contraceptives are housed behind the pharmacy counter in the store, instead of on shelves in the aisles.

It is not clear if the issued guidance from the HHS on Wednesday included pharmacies housed within trigger law states, or if the 60,000 retail pharmacies were solely in non-trigger law states.

Issuing this guidance, however, to clarify the obligations of this nation’s retail pharmacies is not the only action that the HHS has taken since the Supreme Court overturned Roe v. Wade on June 24.

They have launched a website, reproductiverights.gov, which provides information on birth control, abortion access, emergency care, and more. One of the highlights of the website is a “know-your-rights” patient fact sheet, providing necessary information on abortion rights.

On June 27, U.S. Secretary of Health and Human Services Xavier Becerra and U.S. Secretary of Labor Marty Walsh held a meeting with health insurers, “calling on the industry to commit to meeting their obligations to provide coverage for contraceptive services at no cost as required by the Affordable Care Act.”

On June 29, the HHS issued a guidance to protect patient privacy after the Supreme Court overturned Roe. The guidance addressed two main things, “how federal law and regulations protect individuals’ private medical information,” and “the extent to which private medical information is protected on personal cell phones and tablets, and provides tips for protecting individuals’ privacy when using period trackers and other health information apps.”

The Office of Population Affairs within the HHS announced approximately $3 million in new funding for Title X family planning providers, which according to the OPA, is “the only federal grant program dedicated solely to providing individuals with comprehensive family planning and related preventative health services.”

The funding from the HHS, according to the press release on Wednesday, is aimed to bolster training and technical assistance for the nationwide network of Title X family planning providers.

On July 11, the HHS published guidance referring to the executive order Biden signed on Friday. They announced the guidance to clarify that emergency medical care does in fact include abortion services.

Wednesday’s issued guidance is the HHS’ latest efforts to protect reproductive health care in the United States since the overturn of Roe.

“We are committed to ensuring that everyone can access health care, free of discrimination,” Becerra said in the press release on Wednesday.

Natalie can be reached at [email protected]