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3 implications for pharmacy in a post-Roe world

By Chloe Bakst

August 23, 2022

    Pharmacy is at the center of much of reproductive-related care. Medication abortions account for more than half of abortions, and these medications are becoming even more sought after in the wake of the Dobbs v. Jackson ruling.

    Typically a two-drug regimen of mifepristone and misoprostol, medication abortion was introduced to the United States in 2000 and essentially transformed the abortion care landscape. The CDC report that from 2004 to 2019, medication abortions at 9 weeks gestation or less increased by 219.6%. In a 2021 study of patients who received their abortion medication at a pharmacy, 91.3% of participants reported satisfaction with the pharmacy experience.

    The reality of the post-Roe environment is radically different than the world pre-Roe. Surgical abortion is no longer the only option. Using abortion medications, patients can now safely self-manage their abortion care at home. This puts new pressure on pharmacists, who are tasked with dispensing medications in an increasingly complicated legal environment. It's likely that state and federal policies will change with each election and administration.

    This blog outlines three of the most pressing implications for pharmacy in a post-Roe world, focusing on the immediate considerations for pharmacy leaders through the next presidential election.

    1. Brick-and-mortar pharmacies struggle to navigate the legal risks given conflicting state and federal regulations

    Pharmacies in states with strict abortion restrictions may feel like they are caught in a legal catch-22.  If pharmacies provide abortion-related medications in a state with anti-abortion laws, they may be at risk for legal challenges from the state. However, if they do not or cannot fill the prescription, they may face federal civil rights suits or lawsuits related to negative health outcomes due to delayed care.

    Studies have shown that strict restrictions on abortion access can cause "paralysis" for providers making clinical decisions related to abortion, largely related to fear of legal repercussions. We're already seeing this begin in the United States.

    In states like Texas and Louisiana, pharmacists are reluctant to fill prescriptions for misoprostol. Misoprostol can be used for abortion care, but it can also prevent stomach ulcers or prepare patients for gynecological treatments. CVS and other pharmacies have rolled out policies that require pharmacists to call the prescribing clinician to document diagnosis and verify that the prescription will not be used to end a pregnancy. This creates a record for insurance purposes and serves as protection against potential lawsuits.

    Adding to the complexity is the federal response to Dobbs v. Jackson. HHS recently sent a memo to approximately 60,000 pharmacies. The memo reminded pharmacists and pharmacy owners that not filling abortion or pregnancy-related prescriptions could put pharmacies, and pharmacists, at risk for civil rights lawsuits related to pregnancy-based discrimination. The memo also noted that pharmacies that receive federal funding can't discriminate based on their views of contraception and abortion.

    Accordingly, pharmacies are struggling to determine their next steps when it comes to dispensing abortion medications—filling the prescription, not filling the prescription, and pausing to fill the prescription all carry their own legal risk.

    Pharmacy business and clinical leaders will likely need to work closely with their law firms and in-house counsel to create policies that they feel protect their organization and employees from legal risk while also ensuring that the patients they serve have access to necessary medical care.

    2. Access to mail-order pharmacy may be legally restricted, but patients will continue to seek care

    In April 2021, the FDA announced that it would allow medication abortion pills to be mailed to patients for the duration of the pandemic. Organizations like Abortion on Demand launched and saw 80 patients within one month, with plans to scale up to 20,000 patients per year. The digital health company serves 20 states, providing telehealth consults and then sending medication in the mail the next day through American Mail Order Pharmacy (unless the state requires a 24-hour waiting period).

    However, varying state laws create a complicated legal environment for such services. Clinicians providing a medication abortion are required to be physically present when the medication is administered in 19 states, preventing abortion care via telehealth.

    In Arizona, Arkansas, and Texas, mailing abortion medication to patients is currently banned. On the other side of the coin, Montana, Oklahoma, and South Dakota have blocked mailing bans in the courtLegal experts say that the Justice Department may be able to contest bans against mailing abortion medication, since the mail is under federal oversight.

    In the meantime, Advisory Board estimates that approximately 138,000 women per year will be denied abortions in their home state following the overturning of Roe v. Wade. Of this group, 16% will order "extralegal" abortion medication by mail. These medications are often ordered through international telehealth companies like Aid Access, whose doctors face little legal risk from state laws in the U.S.

    Pharmacists in the U.S. who provide virtual medication management services for organizations that provide mail-order abortion medications should prepare for scenarios where patients are seeking care from states with differing—and overwhelmingly restrictive—abortion policies.

    Even if they are not the dispensing pharmacist, pharmacists may feel that providing medication guidance can put them at legal risk. Pharmacies and digital health companies should work with their legal counsel and clinical leadership establish a chain of command for pharmacists to ask questions and receive support when needed. 

    3. Ultimately, the post-Roe pharmacy landscape is poised to exacerbate health inequities

    Advisory Board analyses have found that abortion bans will lead to higher poverty rates and that Black and low-income patients are disproportionately represented in states with abortion bans. As pharmacies seek to protect themselves from legal risk, they may be inadvertently contributing to systemic health inequities.

    New policies that require pharmacists to call the prescribing clinician and verify the diagnosis can create care delays.  Many pharmacies are open seven days a week, from early in the morning until late in the evening, which is not often the case for physician practices. As such, it may be difficult for pharmacists to get in contact with physicians. A Texas-based physician has stated that if the pharmacy is unable to speak to someone in her office, they will deny the prescription.

    Patients going through painful, emotionally disruptive, and potentially life-threatening health issues such as miscarriage or ectopic pregnancy may be left to find a different pharmacy or face poorer health outcomes.

    Delayed pharmacy care can have the most critical impacts for individuals who live in pharmacy deserts, which disproportionately impact Black and Latino neighborhoods. In such cases, delaying or denying medication access can exacerbate health inequities, as patients may not have any recourse beyond the one or two pharmacies in their neighborhood.

    Mail-order pharmacy services may have some ability to meet patients' care needs, but their ability to address abortion-related access problems is a legal grey zone in many states.

    What pharmacy leaders need to watch moving forward

    The ability for pharmacists to provide clinical care to patients, without fear of legal persecution, is critical to ensure that there are no unnecessary delays or adverse outcomes. Ultimately, every pharmacy and pharmacist will have to determine what policies and approaches enable them to balance legal risk with providing quality clinical care. Such decision-making is likely to evolve and fluctuate over time, making flexible workflows and clear communication channels critical to success.

    Depending on the state and local environment, pharmacies may have different concerns and challenges in the coming months as they continue to navigate the post-Roe world. As we move beyond short-term, reactive policies and toward long-term management, pharmacy stakeholders should monitor the following: 

    Pharmacies in states with restrictive abortion policies

    Pharmacies in states with non-restrictive abortion policies

    • Increasing demand for abortion medications may lead to diminished inventory, limiting access to care.
    • A rise in patients travelling out of state for medication abortions may prompt pharmacies to assess their policies for out of state prescription dispensing.

    Pharmacies with cross-state mail-order delivery

    • Some state governments will likely continue to push back against mail-order medication while others fight to ensure access, creating a patchwork of policies.
    • The federal government, through executive order or legal challenges, may push to make abortion medications available via mail legal nation-wide. 

    5 hard truths for provider business in a post-Roe America

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    Download this report to get action steps executives can take to address health care implications of shifting abortion access policies.

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