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Published on Wednesday, July 13, 2022

New Federal Guidance confuses an already complicated landscape for pharmacists

WASHINGTON, DC—Today, in response to the U.S. Supreme Court recent decision in Dobbs v Jackson Women’s Health Organization, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) released guidance for pharmacies that sets forth their obligations under federal civil rights laws, conflicting with some state laws, and raises concerns for our nation's pharmacies and pharmacists. The guidance also takes away a pharmacists’ professional judgment to make “determinations regarding the suitability of a prescribed medication for a patient; or advising patients about medications and how to take them.” The implications of the guidance have the potential to cause widespread unintended consequences beyond reproductive health care services.

Ilisa BG Bernstein, PharmD, JD, FAPhA, interim executive vice president and CEO responded, “While we understand the intent, without consultation with our nation’s pharmacists, OCR hastily issued this guidance which attacks and undermines the fundamental responsibilities and professional judgment of the pharmacist.” Bernstein continued, “It only adds more confusion to an already complicated legal and regulatory landscape post-Dobbs that pharmacists must navigate every day to help our patients.”

The OCR’s guidance lists potential examples when a pharmacist’s refusal to dispense a drug to a patient “may be” a violation of federal law; for example, discrimination against pregnant people on the basis of their pregnancy or related conditions as a form of sex discrimination or for a condition on the basis of disability.

It is unclear if this guidance preempts state law. Bernstein commented, “When dispensing medications, according to this guidance, pharmacists in certain states may be in legal jeopardy and forced to question whether they will face conflicting state or federal penalties when providing care to their patients. It puts them between a rock and a hard place.”

APhA will continue to review the guidelines and their impact on pharmacists’ provision of patient care.

Under the Code of Ethics for Pharmacists:

  • A pharmacist respects the covenant relationship between the patient and pharmacist. Considering the patient-pharmacist relationship as a covenant means that a pharmacist has moral obligations in response to the gift of trust received from society. In return for this gift, a pharmacist promises to help individuals achieve optimum benefit from their medications, to be committed to their welfare, and to maintain their trust.”
  • A pharmacist serves individual, community, and societal needs. The primary obligation of a pharmacist is to individual patients. However, the obligations of a pharmacist may at times extend beyond the individual to the community and society. In these situations, the pharmacist recognizes the responsibilities that accompany these obligations and acts accordingly.”

Under policy APhA passed during its 2022 House of Delegates, APhA affirms the vital role of the pharmacist's professional judgment in ensuring safe and effective use of medications. “APhA asserts that a pharmacist's independent medication review and use of professional judgment in the medication distribution process is essential to patient safety.”

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