Do You Have the Right to Prescription Medications After Roe?
Recently, Annie England Noblin, a woman from Missouri, was denied her prescribed methotrexate (her arthritis medication) because the pharmacist had to check with her doctor to make sure she was not pregnant and going to use it to induce an abortion.
She eventually received her medication but says she will most likely switch to a more expensive option to avoid this hassle in the future. As with Annie, the struggle for women to gain abortion-adjacent medication may only become harder as states increase restrictions in a post-Roe v. Wade world.
Methotrexate, mifepristone, and misoprostol are all medications that can be used for medication abortion in high doses. They are also used more conventionally as treatments for rheumatoid arthritis, cancer, lupus, stomach ulcers, Crohn's, ectopic pregnancies, and miscarriage completion, as well as other autoimmune diseases. However, due to their ability to aid in abortion, those in states with abortion laws may begin to see more restrictions on the prescription of these drugs.
Over the quarantine period of the Covid-19 pandemic, mifepristone was approved by the FDA to be provided via telehealth and remains as such. Meaning that you could try to access the medication via telehealth in a different state.
Legally, however, this is risky, since both you and the physician who provided you with the medication could face consequences from your home state. Also, those providers are likely only licensed to provide telehealth care in their state, which is a different legal battle altogether.
You could also try a telehealth provider from overseas. This option is not as risky for the provider, but some states are prosecuting women who self-attempt abortions, so be aware of those laws in your state when it comes to medication abortion. For those who are using these drugs for a non-abortion-related reason, there are typically more expensive medication choices available if you need to gain access to prescriptions faster. Unfortunately, more expensive medications can be out of reach for many.
A recent memo sent out by the Department of Health and Human Services reminds pharmacists that they cannot discriminate against who they dispense and sell prescription drugs to, as it would violate civil rights laws.
This means they cannot limit drug supply based on someone's pregnancy status. According to the memo, pregnancy discrimination refers to:
- Current pregnancy
- Past pregnancy
- Potential or intended pregnancy
- Medical conditions related to pregnancy or childbirth
So, if a pharmacy refuses to provide methotrexate to a patient who is suffering from rheumatoid arthritis due to the fact that they are a woman, the pharmacy would be discriminating against that customer.
The memo also cites provisions from the Affordable Care Act and the Rehabilitation Act of 1973 stating that it is unlawful for pharmacists working at federally funded pharmacies to refuse to dispense abortion medication or contraceptive pills based on their own beliefs. However, privately funded pharmacies could still choose to act on their personal beliefs.
Also, U.S. Attorney General Merrick Garland indicated that due to preemption ideology, FDA guidelines would come before state laws on the dispensing of prescription drugs. Their guidelines are both the standard and the limitation: The FDA can ban drugs where the states cannot. Meaning that if a state bans a medication that can be used for abortion, they may be violating federal guidelines already in place that allow the prescription of said drug.
There are likely to be numerous court battles regarding prescription drugs and their alternative uses over the coming months and years as states move to restrict abortion. The likelihood of a case regarding men being able to take a drug without having to jump through extra hoops to access a prescription drug is high.
- What is Included in a "Life of the Mother" Exception to an Abortion Ban? (FindLaw's Law and Daily Life)
- Tough New Abortion Laws Raise Free Speech Questions (FindLaw's Courtside)
- Is it Illegal to Give Prescription Drugs to a Friend? (FindLaw's Law and Daily Life)