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Attorney General Ken Paxton filed a lawsuit Tuesday challenging guidance that directed pharmacies to fill prescriptions for abortion-inducing medication, the latest in an ongoing effort to block federal efforts to protect abortion access.
Last summer, just a few weeks after the overturning of Roe v. Wade, the U.S. Department of Health and Human Services issued guidance to the nation’s 60,000 retail pharmacies, “reminding them of their obligations under federal civil rights laws.”
Since they receive federal funding, including from Medicare and Medicaid, pharmacies cannot discriminate on the basis of race, color, national origin, sex, age or disability when it comes to supplying prescribed medications, the guidance said.
The guidance did not purport to overturn state laws like Texas’ near-total ban on abortion, which makes it a felony to even prescribe medication for the purpose of terminating a pregnancy. Instead, it focused on ancillary issues like the use of abortion-inducing medications to treat other conditions.
For example, methotrexate, which can be used in an abortion, is also considered the “gold standard” for treating many autoimmune conditions. Immediately after the U.S. Supreme Court overturned Roe v. Wade, stories began to emerge of pharmacists refusing to fill prescriptions for fear they could be criminalized.
It could be discriminatory, the guidance said, to deny someone access to medication to treat a disability just because it can also be used to terminate a pregnancy. It could also be gender discrimination to sell condoms but refuse to fill a birth control prescription, according to HHS.
This guidance waded into tricky legal territory, which Paxton, an aggressively anti-abortion attorney general, has not hesitated to dive into.
It’s not yet clear how this guidance aligns with a group of federal laws that prohibit discrimination against health care providers who object to abortion. And the question of whether pharmacists can refuse to provide certain medications, including emergency contraception, remains an open one.
“The Biden Administration knows that it has no legal authority to institute this radical abortion agenda, so now it’s trying to intimidate every pharmacy in America by threatening to withhold federal funds,” Paxton said in a statement. “It’s not going to work.”
In the filing, Paxton accused the Biden administration of trying to “nullify Dobbs,” the Supreme Court ruling that overturned Roe v. Wade.
In July, Paxton sued to stop the federal government from requiring emergency rooms to provide stabilizing care, including abortion when medically necessary, to patients experiencing a medical emergency.
A federal judge in Texas granted an injunction blocking the guidance; meanwhile, a federal judge in Idaho issued a contradictory ruling, blocking part of that state’s abortion law that violated the guidance.
Like the lawsuit filed Tuesday, the July legal challenge was filed in a single-judge district, virtually guaranteeing it would end up in front of a conservative district judge appointed by former President Donald J. Trump.
This is not the only ongoing legal fight over abortion-inducing drugs. U.S. District Judge Matthew Kacsmaryk is expected to rule as soon as Friday on a lawsuit, brought by anti-abortion activists, that could remove a common abortion medication from the market.
