On May 2, 1927, the Supreme Court decided that the state-sanctioned forced sterilization of people with disabilities in public institutions is constitutional. Ninety-seven years later, the horrific precedent set in Buck v. Bell remains the law of the land. Due to ableism, sexism, racism, and other mutually reinforcing systems of oppression, people with disabilities face innumerable barriers to sexual and reproductive health equity. These include refusals of care and other health care discrimination, Medicaid eligibility and service gaps, reproductive coercion, and accessibility barriers. In this blog post series, the National Health Law Program highlights current barriers and opportunities for change.
Since the Supreme Court overturned the constitutional right to abortion in Dobbs v. Jackson Women’s Organization, people have faced a surge in barriers to medications with properties that can induce abortions or cause birth defects that treat chronic health conditions. Women, girls, and presumably nonbinary and transgender people are subjected to these discriminatory barriers on the basis of sex, regardless of whether their state has banned, severely restricted, or protected abortion. The barriers have generally fallen into one of the following three categories:
- Some pharmacies within and beyond states that ban or severely restrict abortion have refused to fill prescriptions for drugs (g., methotrexate, which treats rheumatoid arthritis, cancer, and other chronic conditions) altogether. Others have refused to do so until the prescribing provider verifies that the purpose of the prescription is to treat a chronic health condition and not abortion.
- Some health care providers have refused to prescribe or refill medications that can end or cause complications to pregnancies.
- Some health insurance companies are refusing to cover these medications.
Together, these barriers are delaying and barring access to essential health care for chronic health conditions. Access to hormonal contraceptives—which can help mitigate the symptoms of conditions such as endometriosis, polycystic ovary syndrome, postural orthostatic tachycardia syndrome, and Ehlers-Danlos syndrome—are also under threat.
Some of these barriers may have stemmed from a desire to reduce legal risk amid an evolving reproductive legal landscape or a misunderstanding of the law. For some health care providers and entities, Dobbs may simply have emboldened sex and intersectional discrimination in health care. The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has addressed this discrimination through its implementation and enforcement of § 1557 of the Affordable Care Act (ACA), which prohibits covered health care entities from engaging in discrimination on the basis of sex, race, color, national origin, disability, age, or any combination thereof.
2022 guidance to retail pharmacies
In July 2022, OCR issued guidance to retail pharmacies about their obligations to ensure access to comprehensive reproductive health care services, including prescriptions for reproductive and disability-related care. The guidance provided examples of violations of § 1557 and § 504 of the Rehabilitation Act. Among these were pharmacy denials of methotrexate to a person with rheumatoid arthritis because of the medication’s alterative use to induce abortions for ectopic pregnancies. In September 2023, OCR revised the guidance to clarify that it does not require pharmacies to fill prescriptions for the purpose of abortion.
Enforcement activities
Following Dobbs, OCR received and investigated complaints against pharmacies, including CVS and Walgreens, for denying and delaying lawful access to medications that treat chronic health conditions on the basis of sex. In June 2023, OCR announced that Walgreens and CVS agreed to improve timely access to medications for these populations, including creating internal guidance, developing new staff trainings, and monitoring denials of medications related to reproductive health care.
New 2024 final rule
Although § 1557 is self-implementing, regulations help clarify the law’s protections and processes. OCR first finalized regulations on § 1557 in 2016. Then, in 2020, the Trump administration finalized a rule gutting many of these regulations, including eliminating the section defining sex discrimination. On April 26, 2024, the Biden administration finalized a new rule restoring and strengthening these regulations. For example:
- Covered entities: The rule clarifies that § 1557 covers entities who receive federal funding from HHS, whether directly or indirectly. This includes most health care providers, such as physicians, nurses, pharmacists, and health care staff; health care entities that employ those providers and professionals; most health and health-related insurance issuers and plans, including Medicaid managed care plans, Medicare Part C and D, marketplace health plans, and other private health insurance plans that receive HHS funding; HHS itself (including Medicare Part B); and state health agencies, such as State Medicaid agencies.
- Sex and intersectional discrimination: The definition of prohibited sex discrimination includes but is not limited to discrimination based on gender identity, pregnancy or related conditions, sex characteristics, sexual orientation, and sex characteristics, including intersex traits. The final rule reaffirms that if a covered entity denies a person access to a prescription drug for their chronic health condition or other disability on the basis of a prohibited ground, such as sex, that refusal could violate section 1557.
The preamble to the final rule emphasizes that it does not require a health care provider to provide specific services, but if they do provide a service, they must do so in a nondiscriminatory manner.
What to do if you encounter health care discrimination
If you or someone you know experiences health care discrimination, you can file a complaint directly with OCR. You must file the complaint within 180 days of when you knew the act or omission (e.g., refusal to fill a prescription) occurred. For more information, visit https://www.hhs.gov/civil-rights/filing-a-complaint/complaint-process/index.html
For more information on fighting post-Dobbs prescription drug barriers for chronic health conditions, stay tuned for a forthcoming advocate’s primer on these issues.
