Texas sues to halt Biden administration's 'pharmacy mandate' on abortion pills

Texas Attorney General Ken Paxton sued to stop the Biden administration from enforcing its “pharmacy mandate” requiring qualified retail pharmaceutical firms to dispense abortion pills or risk losing Medicare and Medicaid funding.

The lawsuit, filed Tuesday in U.S. District Court for the Western District of Texas, cited the Health and Human Services Department’s July 13 guidance saying that refusing to fill prescriptions for abortion pills would violate federal law banning sex discrimination based on pregnancy.

The guidance cited the Affordable Care Act and the 1964 Civil Rights Act, but Mr. Paxton argued that none of the federal statutes named addresses pregnancy, and that “the Defendants know this” because they issued a proposed rulemaking in August to add pregnancy discrimination to the ACA, popularly known as “Obamacare.”

On the other hand, he said that the administration’s “pharmacy mandate” runs afoul of the ACA, which includes a section saying that it does not preempt state law on abortion, as well as Title IX and the Hyde Amendment.

“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,” Mr. Paxton said.

“It’s not going to work. Texas and several other states across the country have dutifully passed laws to protect the unborn, and we are not going to back down just because unelected bureaucrats in Washington want to create illegal, extremist federal policies,” he said.

The challenge comes as the Biden administration spars with red states over access to mifepristone and Mifeprex, the two-pill regimen approved for terminating pregnancies up to 10 weeks’ gestation, which has become the most popular abortion method despite pro-life concerns about its safety for pregnant women.

I'm filing a new lawsuit against the Biden Admin to stop unlawful guidance issued by HHS that would force every pharmacy in America to transform into an abortion-on-demand clinic or face the loss of Medicaid and Medicare funds. https://t.co/Q06mYagrO1

— Texas Attorney General (@TXAG) February 7, 2023

The HHS guidance issued to 60,000 retail pharmacies said that as recipients of Medicare and Medicaid payments, “pharmacies are prohibited under law from discriminating based on race, color, national origin, sex, age, and disability.”

That includes “discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth,” the department said.

The guidance was posted shortly after the Supreme Court’s June 24 ruling to overturn Roe v. Wade, sending abortion law back to the states and prompting a full-court press by the Biden administration to ensure abortion access.

“We are committed to ensuring that everyone can access health care, free of discrimination,” said HHS Secretary Xavier Becerra in a July 13 statement. “This includes access to prescription medications for reproductive health and other types of care.”

Nineteen states have restrictions on abortion pills, including Texas, where the 2021 Human Life Protection Act bans abortions except to save the mother in the case of a “life-threatening physical condition.”

Last week, 20 Republican attorneys general, including Mr. Paxton, warned Walgreens and CVS in letters that “their announced plan to use the mail to distribute abortion pills is both unsafe and illegal.”

In December, the Food and Drug Administration lifted permanently its pandemic-era restrictions on mailing abortion pills to patients.

Katie Glenn, Susan B. Anthony Pro-Life America policy director Katie Glenn, thanked Mr. Paxton for "courageously standing with women and children against pro-abortion extremism at every turn.”

“No one likes a bully, and that’s exactly what the Biden-Harris administration has become in its push to turn every post office and pharmacy in America into an abortion center,” Ms. Glenn said.

The FDA is also facing a legal challenge to its 2000 approval of the two-pill abortion method from pro-life groups represented by the Alliance Defending Freedom in the U.S. District Court for the Northern District of Texas, Amarillo Division.

The so-called Amarillo lawsuit contends that the FDA “chose politics over science” by green-lighting the drugs, and then by expanding the gestational limit from seven to 10 weeks; allowing non-physicians to prescribe the drugs, and eliminating the requirement to report non-fatal complications.

The Women’s March is holding an “emergency mobilization” Saturday in Amarillo to protest what it called "this junk anti-abortion case." The matter is before U.S. District Court Judge Matthew Kacsmaryk, a nominee of former President Trump.

“The fight for our rights is bigger than Roe. Now they're trying to abuse the courts to ban medication abortion,” said the Women’s March. “We're going to shine a spotlight on Amarillo, TX and these anti-abortion extremists.”

Pro-choice advocates argue that abortion pills have been used safely and effectively for two decades, while pro-life groups cite research showing that they have four times the complication rate of surgical abortions.

“Yet Democrats in Washington seek to use the full force of the federal government to impose abortion on demand until birth in every state – with flagrant disregard for life, safety and the law – and punish anyone who won’t go along,” Ms. Glenn said.