# 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.
**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 *[email protected]*
**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.”
[^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).).
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.
[^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).
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 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.
[^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.
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.
[^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).
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 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.
[^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.
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.
[^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).
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.