Following President Biden’s Executive Order on ensuring access to reproductive health care, on July 13, 2022, HHS issued guidance to U.S. retail pharmacies regarding their obligations under federal civil rights laws. This guidance encompasses the roughly 60,000 retail pharmacies in the U.S. and covers their nondiscrimination obligations as recipients of federal payments such as Medicare and Medicaid payments.

This guidance reminds retail pharmacies that, as recipients of federal financial assistance, they are prohibited under Section 1557 of the Affordable Care Act (Section 1557), 42 U.S.C. 18116, from excluding an individual from participation in, denying them the benefits of, or otherwise subjecting themto discrimination based on sex and other bases (i.e., race, color, national origin, age, and disability) in their programs and activities. Further, under Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. 794, recipients of federal financial assistance are prohibited from discriminating on the basis of disability.

This guidance notes that discrimination against pregnant people on the basis of their pregnancy or related conditions is a form of sex discrimination. 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. Pharmacies, therefore, are reminded under HHS’s guidance that they are prohibited from discriminating against pharmacy customers on the bases prohibited by Section 1557 and Section 504—including with regard to supplying medications; making determinations regarding the suitability of a prescribed medication for a patient; or advising patients about medications and how to take them.

This guidance is the latest action HHS has taken, which comes on the heels of the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808 (U.S. June 24, 2022). HHS’s guidance can be found here.