HHS rescinds ‘vague’ Biden-era guidance on stocking abortion drugs in pharmacies

• On Jan. 27, the Department of Health and Human Services (HHS) rescinded Biden-era guidance on stocking and dispensing abortion drugs in pharmacies, calling the policy vague, legally inconsistent, and potentially violative of pharmacists’ conscience rights.

• The guidance, first issued in 2022 and revised in 2023 after lawsuits, warned pharmacies against discrimination based on sex or disability but stated it did not require dispensing abortion drugs or violating state abortion laws.

• HHS said the guidance conflicted with federal law and executive orders from President Donald Trump, including directives to enforce the Hyde Amendment and rescind agency guidance not based on the best reading of the law.

• HHS also cited federal court confusion and policy language issues. HHS said the guidance was misleading even to a judge and argued terminology such as “pregnant person” is inconsistent with current federal policy.

The Department of Health and Human Services (HHS) yesterday rescinded a 2023 guidance from the Biden administration on stocking abortion pills in pharmacies, calling the guidance “vague and ambiguous” and potentially violating pharmacists’ freedom of conscience.

According to a Jan. 27 HHS notice, the Biden-era guidance was originally issued in 2022 but was amended in 2023 after Texas and individual providers sued. The first guidance had reminded pharmacies that they could not discriminate against customers based on sex and disability and argued that failing to stock or dispense certain drugs, including abortion pills, could be construed as discriminatory, the notice states.

The updated 2023 guidance amended some of the original language and stated that it does not “require pharmacies to fill prescriptions for medication for the purpose of abortion” or oblige pharmacies to violate state laws on abortion, HHS said in the notice. The guidance also added “references to potential protections” for pharmacists with religious objections to dispensing abortion medication.

However, the HHS Office for Civil Rights (OCR) found that the guidance was still “inconsistent” with federal law. The OCR also pointed to policies laid out in two executive orders President Donald Trump signed last year, which directed agencies to enforce the Hyde Amendment — a provision that bans the use of taxpayer dollars for abortions — and to rescind “unlawful” guidances.

The notice argues that the guidance “can still be read as an effort to use taxpayer dollars to promote abortion and likely force pharmacists to participate in abortion even if doing so violated their convictions, which would be potentially against the law.”

The OCR also pointed to arguments made during federal court proceedings challenging the guidance, stating that the litigation demonstrated the guidance was “facially confusing” even to a federal judge. According to the notice, the agency had to clarify that the guidance did not mandate pharmacies to stock or dispense abortion drugs, which underscored that the guidance itself was not sufficiently clear or “based on the best reading of the law.”

​​In addition, the OCR cited the original guidance’s terminology regarding mothers as another reason to rescind it, saying that its use of the term “pregnant person” is inconsistent with current federal policy and executive directives.

Matt Bowman, senior counsel at Alliance Defending Freedom, the legal nonprofit that represented a North Dakota Catholic pharmacy that challenged the guidance, issued a statement saying that it “subjected pro-life pharmacies across the country to a looming threat from federal bureaucrats.”

“Now, we are grateful to the current administration for eliminating the remnants of this Biden-era abortion mandate by repealing it entirely,” Bowman said. “HHS’s decision will protect our former client and pharmacies around the country who are fully within their rights to decline to stock or dispense abortion drugs.”