As I reported last week, new restrictions on abortion in the wake of the Dobbs v. Jackson Women’s Health Organization decision have led the country’s biggest pharmacy chain, CVS, to release new policies in certain states, which explicitly instruct pharmacists to refuse to fill prescriptions for misoprostol, mifepristone, and methotrexate until they can confirm these drugs will not be used for abortion. They must ensure that the provider has included a diagnosis code—which is rarely required beyond insurance purposes—before dispensing the medication to anyone of “child-bearing potential.” As a result, if someone who appears as if they could get pregnant seeks out one of these medications, they will face increased scrutiny and hurdles to accessing it, with sometimes grave consequences.
Since the article’s publication, The New Republic has also obtained similar guidance leaked by an employee at a Walgreens in Arizona, a state where abortion is now only legal to save the life of the mother. The memo, directed toward staff in that state, summarizes what pharmacy employees must do if they receive a prescription for misoprostol, methotrexate, or mifepristone—medications that can induce abortion but are commonly prescribed to treat certain cancers, Crohn’s, arthritis, and plenty of other conditions. When one of these scripts first comes through, the computer system will automatically reject the medication until it is reviewed by a pharmacist.
“The pharmacist must use professional judgment, considering patient demographics (e.g. age, gender), prescription history and any information included on the prescription (e.g. ICD-10, diagnosis, indication) to determine whether the prescriber intended the drug to be used as an abortifacient,” the memo states. If the pharmacist is unable to verify the intended use, they must refer to the prescribing provider.
If the pharmacist determines that the patient is not using the medication for abortive purposes, they must enter a note in the system explaining the patient’s intended use for the treatment, and are then able to override the rejection. That note must be detailed and specific and name the provider who approved it. “If the prescriber’s office cannot confirm that the drug is not intended to be used as an abortifacient, the prescription must be refused and provided back to the patient.”
The Walgreens memo offers more leeway to the pharmacist and their professional judgment than CVS’s initial instruction to its employees. But it still adds additional barriers for patients who need these medications for reasons other than abortion. CVS, for its part, has appeared to offer additional guidance to some of its facilities in Alabama, Arkansas, Idaho, Oklahoma, and Texas, dated July 8, which provides more clarity on the steps pharmacists must follow to dispense such medications, but does not fundamentally change the policy. Documentation of the “indication of this medication” is required for all “female patients under the age of 60.”
Dr. Madeline King-Patel, a clinical pharmacist, affirmed that “it is very uncommon for diagnosis codes to be available” for most medications. “Unless there are dropdown boxes to select a diagnosis code when a prescription is electronically sent to the pharmacy, I think it would be unlikely that providers would know diagnosis codes without looking them up.”
As the employee in Arizona who shared the Walgreens memo with me said, “[I] just think it’s ridiculous that pharmacists have to jump through all these hoops to treat their patients. I understand pharmacists sometimes have to deny medications/clarify with doctors due to drug interactions or incorrect dosing, but this just feels invasive. Especially since it’s only for women. Men with autoimmune diseases who take these medications won’t have to deal with the same issues.”
When asked for comment about the memo, Fraser Engerman, senior director of external communications at Walgreens, stated that “trigger laws in various states require additional steps for dispensing certain prescriptions and apply to all pharmacies, including Walgreens. In these states, our pharmacists work closely with prescribers as needed to fill lawful, clinically appropriate prescriptions.” He declined to confirm which states other than Arizona received the memo we obtained.
It’s not surprising that retail pharmacies are, as one of my sources told me, trying to “cover our asses” in the wake of unprecedented new abortion restrictions. They understandably want to escape criminal liability and fines from states that could prosecute them. Among the 13 states with “trigger bans,” some of the criminal penalties for violators could include up to 20 years in prison and “hard labor,” fines of up to $100,000, and revocation of the performing physician’s medical license. Some of these states shield the person seeking care from punishment, but most do not, and only a few have exceptions for cases of rape and incest. On top of that, a number of other states now outlaw abortion except in cases in which the mother’s life is at risk, or have enacted six-, 15-, or 16-week bans. (Other states have expanded access or codified the right to abortion at a state level.)
“Pharmacists are caught in the middle of this issue,” said CVS spokesperson Mike DeAngelis.
For patients, the consequences range from frustrating to life-threatening. For example, Jennifer Crow, who lives in eastern Tennessee, faced a delay in getting her methotrexate from CVS this month. The pharmacist refused to dispense her refill until her doctor called the pharmacy directly to confirm it would not be used for abortive purposes. Crow is 48 and has a hysterectomy. “I was devastated, and angry,” she told me. Though she was eventually able to get her medication, the hold on it caused her symptoms–which include joint pain, weakness, and fatigue–to significantly worsen. “By Tuesday morning, putting my pants on, my pain was like a 10.”
For Jennifer, this uncertainty will constitute yet another burden she faces as a person with a chronic illness. “Even though my incident [was] resolved, I am not confident going forward that my methotrexate is secure,” she said.
Another patient, Jessica, who lives in North Richland Hills, Texas, and did not want her last name used, is no longer able to get methotrexate to treat her severe Crohn’s disease. She takes the medication to keep her Crohn’s from progressing and to help reduce her use of immunosuppressive drugs. But her doctor was so concerned Jessica would not be able to continue to access methotrexate in the wake of Texas’s abortion ban that they revised her treatment plan, upping her dosage of immunosuppressive drugs that put her at greater risk for infections like Covid-19.
It’s not just methotrexate that’s been affected. In June, Noël Anderson, who lives in New Orleans, Louisiana, which also has a trigger ban as well as a constitutional amendment, had trouble getting her prescription filled for Cytotec, the brand name for misoprostol, at Walgreens, even though it was simply being used to make an IUD insertion less painful. “When I went to pick up the prescribed Cytotec at my local Walgreens, the young woman at the window looked nervous about whether she could give me the meds or not. She asked me what it was for and then asked another pharmacist if she was allowed to hand over the pills,” she said. “I found this really strange and had never had this experience when picking up any meds before.”
She wanted to be sure she was able to get her IUD due to concerns about being able to access contraception in the future. “IUD placement/removal is excruciatingly painful. Just blinding,” she continued. “I was hurt and furious that Walgreens considered not letting me have [Cytotec].”
Such barriers to care may, in some cases, constitute discrimination on the basis of sex or disability, according to an updated guidance released by the Biden administration earlier this month, which “covers the nondiscrimination obligations of pharmacies under federal civil rights laws.” The document, issued by the Department of Health and Human Services, gives specific examples of cases in which misoprostol, mifepristone, and methotrexate would be prescribed that are not abortions. These include miscarriage, stomach ulcers, uterine infection, rheumatoid arthritis, and emergency contraception.
However welcome the HHS document is, it has some significant shortcomings. For one, it notably does not supersede so-called “Church Amendments” in the states that allow providers to refuse to provide abortion or sterilization services on account of religious beliefs. The Office of Civil Rights, it states, “will evaluate and apply the Church Amendments on a case-by-case basis.”
The statement closes with a disclaimer that effectively deems the guidelines unenforceable. “The contents of this document do not have the force and effect of law and are not meant to bind the public in any way,” it says. “This document is intended only to provide clarity to the public regarding existing requirements under the law or the Departments’ policies.”
Moreover, none of these responses address the core issue of the problem, which is, as Dr. Katie McHugh, an ob-gyn in Illinois, described, “the interference of a person’s bodily autonomy. And the ability for a person to make a decision about their own body.”
When asked about the guidelines, Mike DeAngelis from CVS said, “We have reviewed the HHS guidance and believe our policy is in compliance with that guidance. Laws in certain states restrict the dispensing of medications for the purpose of inducing an abortion. These laws, some of which include criminal penalties, have forced us to require pharmacists in these states to validate that the intended indication is not to terminate a pregnancy before they can fill a prescription for methotrexate or misoprostol.” Walgreens stated that it is reviewing the guidance but declined further comment.
While the end of Roe v. Wade will empower certain medical providers to refuse treatment on the basis of their beliefs, it has spooked other physicians and pharmacists, even in states where abortion is protected. Kristin Tevonian, who lives in suburban Illinois, faced a runaround when trying to refill her methotrexate script at Walgreens. Tevonian has a connective tissue disorder and acquired severe psoriatic arthritis after a Covid infection in January. “When I developed the psoriatic arthritis, I couldn’t even get out of bed in the morning,” she said. “My body just hurt so badly. The psoriasis was all over my head, my ears, my elbows. It’s just this burning itchy feeling, [and] you just can’t stop itching.”
Methotrexate helped her psoriasis clear up, reduced her joint pain, and allowed her to resume her life. She’d never had a problem having the prescription filled until after the Dobbs decision. Earlier this month, she tried three times to pick it up from Walgreens. The first time, the pharmacy clerk apologetically told her a pharmacist had to approve the medication, but there wasn’t one available at the time. She had her doctor call Walgreens but still wasn’t able to pick up her prescription when she returned because she was told the pharmacist was at lunch. The third time she went with her husband, and the clerk had no problem dispensing the medication to him. “Nobody would give me the medicine and insisted I speak with a pharmacist,” she said. “But the minute they see a man, they’re like, ‘Oh, here, have it.’”
Tevonian asked the clerk if she needed to talk to a pharmacist, but he didn’t seem to have any idea about a policy requiring methotrexate to be approved by a pharmacist. She plans to switch to an online pharmacy next month to avoid the hassle. But it’s worth noting that new requirements about dispensing medications with abortive potential have affected independent and mail-order pharmacies too.
While it’s unclear why exactly Tevonian’s situation happened in a state like Illinois, it is clear that the Roe decision has sown confusion and chaos among pharmacists and doctors, resulting in a patchwork of inconsistently applied policies across states that even employees in the same branch aren’t uniformly enforcing. The ripple effects could be grave. Dozens of medications are classified as “class D” or “class X,” meaning they could carry serious risks to pregnant people, from Accutane to ibuprofen. While patients who are pregnant or seeking to get pregnant should certainly know the clinical risks of taking certain medications, that possibility shouldn’t preclude their ability to get the care they need.
As patients’ “child-bearing potential” is placed above their own health and bodily autonomy, there are already state-level efforts to ban and restrict Plan B, birth control, and IVF treatments. Last week, a couple was denied birth control at a Walgreens in Wisconsin. An extremist lawyer in Texas is even rallying to exempt PrEP, which prevents HIV, from health insurance mandates. It’s worth noting here, too, that birth control is not only used to prevent pregnancy but also often used to control painful pelvic conditions like endometriosis. These medications will certainly find themselves in the cross fire should Clarence Thomas get his wish to wipe out the right to contraception as well as abortion.
Such new restrictions will continue to disproportionately impact patients with chronic illnesses and disabilities, who are also more likely to live in poverty and have difficulty accessing health care. “These are the folks that society tries to ignore. People with chronic illness, chronic pain—society does not want to prioritize their safety or comfort,” said McHugh, the ob-gyn and pelvic pain specialist.
“I am enraged,” Jessica, the Crohn’s patient in Texas whose doctor won’t prescribe her methotrexate anymore, said. “I now have more risk and more potential scary consequences because of religious beliefs I do not hold. It is absolutely insulting to be a grown adult denied medicine because someone is worried about someone else’s business.… I just want them to see me as a real person who is alive and wants to stay so.”