Notice2026-01550
Rescission of Guidance to Nation's Retail Pharmacies: Obligations Under Federal Civil Rights Laws To Ensure Nondiscriminatory Access to Health Care at Pharmacies (Issued September 29, 2023)
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Published
January 27, 2026
Effective
January 27, 2026
Issuing agencies
Health and Human Services Department
Abstract
The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) hereby rescinds "Guidance to Nation's Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Nondiscriminatory Access to Health Care at Pharmacies," issued on September 29, 2023 (2023 Guidance) as revised guidance to "Guidance to Nation's Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services," originally issued on July 13, 2022 (2022 Guidance). This recission is effective upon publication.
Full Text
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<title>Federal Register, Volume 91 Issue 17 (Tuesday, January 27, 2026)</title>
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[Federal Register Volume 91, Number 17 (Tuesday, January 27, 2026)]
[Notices]
[Pages 3520-3522]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-01550]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Rescission of Guidance to Nation's Retail Pharmacies: Obligations
Under Federal Civil Rights Laws To Ensure Nondiscriminatory Access to
Health Care at Pharmacies (Issued September 29, 2023)
AGENCY: Office for Civil Rights (OCR), Office of the Secretary,
Department of Health and Human Services.
ACTION: Notice; rescission of guidance.
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SUMMARY: The U.S. Department of Health and Human Services (HHS), Office
for Civil Rights (OCR) hereby rescinds ``Guidance to Nation's Retail
Pharmacies: Obligations under Federal Civil Rights Laws to Ensure
Nondiscriminatory Access to Health Care at Pharmacies,'' issued on
September 29, 2023 (2023 Guidance) as revised guidance to ``Guidance to
Nation's Retail Pharmacies: Obligations under Federal Civil Rights Laws
to Ensure Access to Comprehensive Reproductive Health Care Services,''
originally issued on July 13, 2022 (2022 Guidance). This recission is
effective upon publication.
DATES: This action is effective January 27, 2026.
FOR FURTHER INFORMATION CONTACT: David Christensen, Supervisory Policy
Advisor, HHS Office for Civil Rights, (202) 741-8460 or (800) 537-7697
(TDD), or by email at <a href="/cdn-cgi/l/email-protection#c784a8a9b4a4aea2a9a4a287afafb4e9a0a8b1"><span class="__cf_email__" data-cfemail="22614d4c51414b474c4147624a4a510c454d54">[email protected]</span></a>
SUPPLEMENTARY INFORMATION:
I. Background
In light of the stated policy in Executive Order (``E.O.'') 14182,
``Enforcing the Hyde Amendment,'' to end the forced use of Federal
taxpayer dollars to fund or promote elective abortion, and the
direction under E.O. 14219, ``Ensuring Lawful Governance and
Implementing the President's `Department Of Government Efficiency'
Deregulatory Initiative,'' to rescind or modify ``regulations that are
based on anything other than the best reading of the underlying
statutory authority or prohibition,'' \1\ The U.S. Department of Health
and Human Services (HHS), Office for Civil Rights (OCR) hereby rescinds
``Guidance to Nation's Retail Pharmacies: Obligations under Federal
Civil Rights Laws to Ensure Nondiscriminatory Access to Health Care at
Pharmacies.''
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\1\ Pursuant to Section 6 of E.O. 14219, the term ``regulation''
includes the term ``guidance document'' as defined in E.O. 13422 of
January 18, 2007, Further Amendment to Executive Order 12866 on
Regulatory Planning and Review (```Guidance document' means an
agency statement of general applicability and future effect, other
than a regulatory action, that sets forth a policy on a statutory,
regulatory, or technical issue or an interpretation of a statutory
or regulatory issue.'' E.O. 13422, Sec. 3(g) (Jan. 18, 2007).).
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On July 13, 2022, OCR issued ``Guidance to Nation's Retail
Pharmacies: Obligations under Federal Civil Rights Laws to Ensure
Access to Comprehensive Reproductive Health Care Services,'' (2022
Guidance) to purportedly remind roughly 60,000 retail pharmacies in the
United States that they must comply with civil rights laws such as
Section 1557 of the Affordable Care Act (Section 1557), 42 U.S.C.
18116,\2\ which prohibits discrimination on the basis of sex, among
other bases, and Section 504 of the Rehabilitation Act of 1973 (Section
504), 42 U.S.C. 794,\3\ which prohibits discrimination on the basis of
disability. The 2022 Guidance stated that pharmacies may not
discriminate against pharmacy customers based on sex and disability,
which it contended might be the case if pharmacists did not stock or
dispense various drugs. It also asserted the application of federal
civil rights laws to pharmacies in various ways. First, according to
the 2022 Guidance, disparities in maternal health for minority women
would be exacerbated by the Supreme Court decision in Dobbs v. Jackson
Women's Health Organization.\4\ Second, the 2022 Guidance also stated
that OCR is responsible for protecting the ``rights of women and
pregnant people'' (sic) in their ability to access health care that is
free from discrimination, including nondiscriminatory access to
``reproductive health care,'' including prescription medication from
their pharmacy. Third, the 2022 Guidance specified examples of what may
constitute discrimination by a pharmacist, including failure to stock
or fill prescriptions for drugs that may be used as contraceptives and
abortion, if refusal to distribute the drugs would deny individuals
with certain conditions their use. A few examples discussed the drugs
``mifepristone,'' ``misoprostol,'' and ``methotrexate,'' all of which
can cause an abortion, but the latter two of which have FDA-approved
uses for non-abortion purposes. Mifepristone and misoprostol are part
of the FDA-approved abortion regimen, while methotrexate can end an
ectopic pregnancy.
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\2\ Section 1557's implementing regulation, 45 CFR part 92,
prohibits recipients of federal financial assistance from excluding
an individual from participation in, denying an individual the
benefits of, or otherwise subjecting an individual to discrimination
on the basis of sex and disability, among other bases.
\3\ Section 504's implementing regulation, 45 CFR part 84,
prohibits recipients of federal financial assistance from
discriminating in their programs or activities on the basis of
disability.
\4\ 597 U.S. 215 (2022).
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The 2022 Guidance was challenged in district court by the State of
Texas and individual providers who contended that it required
pharmacies to dispense abortion-inducing drugs as a condition of
receiving federal financial assistance in violation of federal law.
OCR, in response to this litigation, issued ``Guidance to Nation's
Retail Pharmacies: Obligations under Federal Civil Rights Laws to
Ensure Nondiscriminatory Access to Health Care at Pharmacies''
(September 29, 2023) (2023 Guidance), which revised the 2022 Guidance
in several ways. The 2023 Guidance removed the mention of
``mifepristone,'' removed the reference to the claim that the Dobbs
decision would exacerbate ``inequities and disparities for women,'' and
added language stating the guidance does not ``require pharmacies to
fill prescriptions for medication for the purpose of abortion'' or
imply any obligation for pharmacies to fill prescriptions in violation
of state laws, including those that restrict abortion. In addition, the
[[Page 3521]]
2023 Guidance amended sections of the 2022 Guidance which referenced
conscience protections contained in the Church Amendments by adding
references to potential protections under the Religious Freedom
Restoration Act, 42 U.S.C. 2000bb, et seq. for pharmacists with certain
religious objections in the context of the referenced medications.
Despite these changes, and as detailed below, the 2023 Guidance remains
inconsistent with the law and the policies set forth in E.O. 14182 and
E.O. 14219.
II. Basis for Rescission
OCR rescinds the 2023 Guidance in light of the stated policy in
E.O. 14182, ``Enforcing the Hyde Amendment,'' to end the forced use of
Federal taxpayer dollars to fund or promote elective abortion, and the
direction under E.O. 14219, ``Ensuring Lawful Governance and
Implementing the President's `Department Of Government Efficiency'
Deregulatory Initiative,'' to rescind or modify guidance that is not
based on the best reading of the underlying statutory authority or
prohibition, for several reasons.
First, Section 1 of E.O. 14182 notes that ``Congress has annually
enacted the Hyde Amendment and similar laws that prevent Federal
funding of elective abortion.'' Section 1 states it is the policy of
the United States ``to end the forced use of Federal taxpayer dollars
to fund or promote elective abortion.'' The 2022 Guidance was issued in
response to the Dobbs decision and promoted \5\ abortion. The 2023
Guidance revised the 2022 Guidance due to litigation. However, the 2023
Guidance can still be read as an effort to use taxpayer dollars to
promote abortion and likely force pharmacists to participate in
abortion even if doing so violated their convictions, which would be
potentially against the law.
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\5\ The 2022 Guidance was issued between two now-rescinded
Executive Orders that by their express terms sought to ``protect
access'' to abortion. E.O. 14076 (``Protecting Access to
Reproductive Healthcare Services''); E.O. 14709 (``Securing Access
to Reproductive and Other Healthcare Services''). E.O. 14076 was
issued on July 8, 2022, just after the June 2022 Dobbs decision.
E.O. 14076's stated purpose was to ``protect access to reproductive
health care services,'' a term the E.O. defined to include abortion
(``the termination of a pregnancy''). This goal was further
reinforced by E.O. 14709, issued on August 3, 2022, which
significantly referred to HHS's issuance of ``guidance to the
Nation's retail pharmacies'' as a ``critical step'' for reminding
pharmacies ``of their civil rights obligations under Federal civil
rights laws . . . to ensure equal access to comprehensive
reproductive and other health care services.'' (emphasis added).
E.O. 14709 also defined ``reproductive healthcare services'' to
include abortion. E.O. 14182 rescinded both of these executive
orders.
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The revisions in the 2023 Guidance removed references to
``mifepristone,'' to ``reproductive healthcare services,'' and to the
Dobbs decision. The 2023 Guidance also added a statement that the
revised guidance ``does not require pharmacies to fill prescriptions
for medication for the purpose of abortion.'' To litigants representing
those seeking to defend their federally enshrined conscience
protections, however, the 2023 revisions read like litigation-minded
boilerplate. Indeed, the 2023 Guidance could still be read to threaten
pharmacists who refuse to fill certain other medications that may also
be used for abortion. In doing so, at a minimum, it conflicts with
Section 1 and Section 2 of E.O. 14182. The 2023 Guidance asserts that a
pharmacist's refusal to fill or stock methotrexate or misoprostol
(which can each be used for non-abortion purposes) because of the
pharmacist's concern that those drugs can be used to induce an abortion
may constitute discrimination on the basis of disability or sex. But
while the 2023 Guidance pretextually purports to base its protection of
access to abortion-inducing drugs on non-abortion purposes, this 2023
Guidance cannot be removed from its historical context, namely, an
attempt to respond to litigation while retaining the original design of
the 2022 Guidance, which a federal judge found promoted abortion,
including with the use of taxpayer dollars. The 2023 Guidance could
also be seen, in some cases, as requiring unwilling providers to
participate in abortion, potentially contrary to federal protections
against discrimination based on conscience. Evincing this historical
context, the 2023 Guidance maintains all of the original 2022 examples
that would require a pharmacist to stock a drug that can be used for
abortion. The 2023 Guidance, thus, at a minimum, is vague and
ambiguous, and can be read as continuing to promote abortion and,
consequently, is inconsistent with E.O. 14182 and with this
Administration's position in support of protecting rights of
conscience.
Second, the 2023 Guidance is undercut by admissions made in
litigation that show the guidance is ``based on anything other than the
best reading of the underlying statutory authority or prohibition.''
\6\ As noted above, the 2022 Guidance was challenged in district court
on grounds that it required dispensing of abortion-inducing drugs as a
condition of receiving federal financial assistance like Medicare and
Medicaid funds. Texas v. United States Dep't of Health & Hum. Servs.,
681 F. Supp. 3d 665, 671 (W.D. Tex. 2023). As noted by the court, id.
at 676-77, the 2022 Guidance explained that OCR ``is responsible for
protecting the rights of women and pregnant people [sic] in their
ability . . . to access reproductive health care, including
prescription medication from their pharmacy.'' Id. at 676-77.
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\6\ E.O. 14219, Ensuring Lawful Governance and Implementing the
President's `Department Of Government Efficiency' Deregulatory
Initiative, 90 FR 10583 at 2(a)(iii) (Feb. 19, 2025).
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In litigation, despite the federal government's attempt to focus on
the 2022 Guidance's use of examples unrelated to abortion, the federal
government ``oppose[d] a declaratory judgment in Texas's favor, stating
that the Pharmacy Guidance does not require Texas pharmacies to
dispense drugs for abortion purposes in violation of Texas law.'' Id.
at 679. The district court ruled that the plaintiffs had standing to
challenge the complaint, because (1) ``Texas [ ] clearly indicated that
it intends to enforce its state laws and prevent Texas pharmacies from
dispensing the drugs for abortion purposes[ ]'' and (2) ``[t]he
Pharmacy Guidance does require pharmacies to dispense drugs for
abortion purposes. It seeks to preempt and interfere with Texas's
sovereign interest in enforcing its legal code[.]'' Id. at 680.
As described above, after a federal court ruled that Texas had
standing to challenge the guidance, OCR attempted to address the
alleged legal infirmities in the 2022 Guidance by issuing the updated
2023 Guidance, which removed references to ``mifepristone,'' to
``reproductive health care,'' and to the Dobbs decision, and added a
line about not requiring pharmacists to dispense drugs for the purpose
of abortion. Plaintiffs, despite the updates to the 2022 Guidance,
argued that the 2023 Guidance still mandated pharmacies dispense
abortion-inducing drugs, citing the guidance's reference to
methotrexate. The district court upheld the 2023 Guidance only after
receiving and relying upon representations and assurances made by HHS's
representatives at oral argument about the nature of the revisions in
the 2023 Guidance. The need for these oral representations and
assurances showed that the 2023 Guidance was facially confusing (and
potentially misleading) even to a federal judge, and further revealed
that the guidance was not based on the best reading of the law. At oral
argument, the court raised ``the million-dollar question''--``assuming
a complaint was filed, would [ ] OCR's enforcement hammer come crashing
[[Page 3522]]
down on Plaintiffs'' who had repeatedly answered they would not
dispense methotrexate ``because doing so would `knowingly' be providing
a means to end human life.'' Texas v. United States Dep't of Health &
Hum. Servs., No. 23-CV-00022-DC, 2024 WL 1493809, at *6 (W.D. Tex. Apr.
5, 2024). The court summarized the ensuing colloquy:
Much to the Court's surprise, Defendants' answer at the summary
judgment hearing was a resounding no. In fact, the Defendants stated
that even ``if OCR received a complaint, OCR would determine on the
basis of the complaint that it is invalid.'' And when the Court
pressed the hypothetical again, Defendants affirmed once more ``if
HHS received a complaint based on that, HHS would quickly reject
that complaint because in HHS's view, that is not a violation of
law. And that's certainly not something that HHS would go out of its
way to investigate.''
The Court then changed the question slightly, asking Defendants
if OCR would investigate if the pharmacy's reason for not dispensing
the drugs was because the woman was pregnant--which seemingly would
violate Title IX's prohibition on pregnancy discrimination.
Defendants responded with the same answer: ``if that complaint came
before HHS, HHS would quickly reject it because its position is that
that's not a violation of the law.''
Id. at *6.\7\ Thus, considering that these verbal concessions (a
literal ``surprise'' to the presiding judge based upon a plain reading
of the 2023 Guidance) were needed to convince a federal judge that it
was legally defensible, OCR finds it is difficult to maintain that the
2023 Guidance advances the best reading of the civil rights statutes
enforced by OCR. The language of the 2023 Guidance requires pharmacies
to stock and fill prescriptions for drugs such as methotrexate and
misoprostol, even if the pharmacist objects due to their potential
abortion-related uses. When the 2023 Guidance is considered in light of
HHS's assurances to the court that it would not pursue investigations
of such actions the 2023 Guidance purports to prohibit, it is confusing
(and potentially misleading) to the public and regulated entities.
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\7\ Based on this discussion, the court concluded that ``OCR's
enforcement hammer'' would not ``come crashing down on Plaintiffs''
for not dispensing methotrexate. Id. at *1, *6-*8. The court
concluded that the revised guidance, with HHS's assurances, did not
require the plaintiffs to dispense drugs for abortion purposes, or
for non-abortion purposes if it would violate Texas law or
plaintiffs' sincerely held religious beliefs. Id at *8.
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In furtherance of the requirements in sections 2(a)(iii) and 3 of
E.O. 14219 to identify, deprioritize, and rescind guidance documents
that ``are based on anything other than the best reading of the
underlying statutory authority or prohibition,'' \8\ OCR is rescinding
this guidance.
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\8\ E.O. 14219, Ensuring Lawful Governance and Implementing the
President's `Department Of Government Efficiency' Deregulatory
Initiative, 90 FR 10583 at 2(a)(iii) (Feb. 19, 2025).
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Finally, the 2023 Guidance uses the phrase ``pregnant person.''
This term is inconsistent with E.O. 14148 ``Initial Rescissions Of
Harmful Executive Orders And Actions,'' which repealed E.O. 13988 on
``Preventing and Combatting Discrimination on the Basis of Gender
Identity or Sexual Orientation,'' and with E.O. 14168 ``Defending Women
From Gender Ideology Extremism And Restoring Biological Truth To The
Federal Government.'' E.O. 14168 defines a ``woman'' or a ``girl'' as
``female'' based on biological facts and rejects efforts to
``invalidate'' the biological category of ``woman.'' Accordingly, the
term ``pregnant person'' is unnecessarily broad since only women and
girls can be pregnant.
The 2023 Guidance is rescinded.
III. Collection of Information Requirements
This Notice creates no legal obligations and no legal rights.
Because this Notice imposes no information collection requirements, it
need not be reviewed by the Office of Management and Budget under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Dated: January 21, 2026.
Paula M. Stannard
Director, Office for Civil Rights, Department of Health and Human
Services.
[FR Doc. 2026-01550 Filed 1-23-26; 11:15 am]
BILLING CODE 4153-01-P
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