Texas Attorney General Ken Paxton filed a lawsuit this week against the Department of Health and Human Services (HHS) over guidance that would require retail pharmacies across the country to dispense mifepristone, the first pill used in a two-drug medication abortion regimen.
Soon after the Supreme Court issued its Dobbs decision, one of the many measures the Biden administration took to to promote abortion was the Pharmacy Mandate. The HHS sent out the guidance in July of 2022, requiring that pharmacies that receive Medicare and Medicaid payments “to stock and dispense abortifacients for elective abortion purposes. It threatens legal action against those pharmacies and pharmacists that do not,” the complaint reads.
Texas argues that the HHS improperly promulgated the rule and is threatening the loss of federal funding to make pharmacies comply the the Biden administration’s radical abortion-on-demand agenda. The lawsuit, which was filed in the United States District Court Western District of Texas, also alleges that the guidance is in violation of several state laws prohibiting abortion.
“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,” Paxton said in a statement. “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.”
The Pharmacy Mandate stipulates that pharmacies who receive federal financial assistance are “prohibited under law from discriminating based on race, color, national origin, sex, age, and disability in their programs and activities. This includes supplying prescribed medications; making determinations regarding the suitability of prescribed medications for a patient; and advising a patient about prescribed medications and how to take them,” according to the lawsuit.
WASHINGTON, DC – JANUARY 18: Director of the Christian Defense Coalition Rev. Patrick Mahoney speaks as a small group of anti-abortion activists rally against the availability of abortion pills at neighborhood pharmacies outside of a CVS Pharmacy on January 18, 2023 in Washington, DC. Earlier this month, the Food and Drug Administration (FDA) made a regulatory change that now allows retail pharmacies to offer abortion pills to people who have a prescription. (Photo by Drew Angerer/Getty Images)
Paxton alleges that the HHS is engaging in a blatant misinterpretation of federal civil rights law and notes that none of the statutes cited by HHS “address pregnancy discrimination.”
The lawsuit also states that the guidance violates the Hyde Amendment, which prohibits the use of federal dollars to fund abortions, except when the pregnancy is the result of rape or incest, or if the woman’s life is at risk.
“By conditioning pharmacies’ receipt of federal funds on their dispensing of abortion-inducing drugs, Defendants’ Pharmacy Mandate uses federal dollars to fund abortions outside the allowable scope of the Hyde Amendment,” the complaint reads.
The lawsuit further details how the mandate violates Texas law, including the Human Life Protection Act, which states that a “ person may not knowingly perform, induce, or attempt an abortion.”
Statutes pre-dating the Supreme Court’s 1973 Roe v. Wade decision also address abortion. Under those statutes, “any person who causes an abortion is guilty of an offense and shall be confined in a penitentiary,” the complaint states, adding that individuals are also banned from acting as accomplices to abortion or attempted abortions.
“Texas is injured because the Pharmacy Mandate purports to preempt its laws by requiring pharmacies to stock and dispense abortifacients even if doing so would violate State law. This violates Texas’s “sovereign interest in the power to create and enforce a legal code,” the complaint alleges.
“By requiring pharmacies that receive Medicare and Medicaid funds—including retail pharmacies operated by Texas Tech University Health Sciences Center—to dispense abortifacients when the life of the mother is not in danger, the Pharmacy Mandate flouts Dobbs’s holding that States may regulate abortion and directly infringes on Texas’s sovereign and quasisovereign authority,” the complaint continues.
Paxton is asking the court to issue a permanent injunction prohibiting Defendants from enforcing the Pharmacy Mandate. The lawsuit asks the court to evaluate the guidance under the Administrative Procedure Act (APA) which describes how a court must “hold unlawful and set aside agency action” that is “arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory…authority, of limitations, or short of statutory right.”
“An attempt to overrule state abortion laws by attaching strings to Medicaid and Medicare funding is a sizeable elephant; HHS’s claim to have found it in a mousehole that both the ACA and Title IX disclaim exists demands scrutiny,” the lawsuit states.
Notably, the FDA also made a regulatory change in early January allowing retail pharmacies to offer mifepristone in-store and by mail order, though patients will still need a prescription from a certified health care provider.
At the same time, the FDA officially removed the in-person requirement from its regulatory rule book for mifepristone, meaning women will continue to be able to obtain a prescription for the abortion pill via telemedicine. The FDA made the move the same day President Joe Biden’s Department of Justice (DOJ) cleared the U.S. Postal Service to deliver abortion drugs to states with abortion restrictions and bans, offering “limited assurances that a federal law addressing the issue won’t be used to prosecute people criminally over such mailings,” according to Politico.
After the rule change, spokespeople from Walgreens and CVS confirmed the chains would offer mifepristone at locations where it not against state law, and Rite Aid followed closely behind. However, 20 state attorneys general wrote a letter to CVS and Walgreens warning that dispensing abortion pills by mail could be illegal.
“Federal law expressly prohibits using the mail to send or receive any drug that will ‘be used or applied for producing abortion’,” the letter reads. “The text could not be clearer: ‘every article or thing designed, adapted, or intended for producing abortion…shall not be conveyed in the mails.’ And anyone who ‘knowingly takes any such thing from the mails for the purpose of circulating’ is guilty of a federal crime.”
The Texas lawsuit comes right before a federal judge is expected to rule in another case that could take mifepristone off of the market.
That lawsuit was filed by Alliance Defending Freedom (ADF) on behalf of four national medical associations and several doctors against the FDA and alleges that the agency “chose politics over science and approved chemical abortion drugs for use in the United States.” If the judge rules in favor of the plaintiffs, there could be a nationwide injunction on mifepristone.
Mifepristone functions by blocking the action of progesterone, which the mother’s body produces to nourish the baby. When progesterone is blocked, the lining of the mother’s uterus deteriorates, and blood and nourishment are cut off to the developing baby, who then dies inside the mother’s womb. The drug misoprostol (also called Cytotec) then causes contractions and bleeding to expel the baby from the mother’s uterus, according to former abortionist Dr. Anthony Levatino.
The pro-abortion Guttmacher Institute found that mifepristone is used for more than half of all abortions in the United States. In 2020, the drug accounted for 53 percent of all abortions, up from 39 percent in 2017.
The case is Texas v. Becerra, No. 7:23-cv-22 in the United States District Court Western District of Texas.
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