State Abortion Regulations Create a Conundrum for Practicing Pharmacists

William J. Stilling, MS, JD, a partner at Stilling & Harrison, PLLC, discusses that the Supreme Court’s decision for state-regulated abortion laws makes it difficult for pharmacists to manage abortion-related medication or determine legality with Pharmacy Times at the American Pharmacists Association (APhA) 2023 Annual Meeting & Exposition in Phoenix, Arizona from March 24 to 27, 2023.

PT Staff: PT Staff: What is the medication-related repercussions of Dobbs v. Jackson?

William J. Stilling, MS, JD: Well, the medication related issues are that the abortion is now left to the states. And that means we've got a bit of a free for all. That's sort of how the Constitution was designed that in many instances; the states would be making their own laws. This is a very controversial area. And so now for the first time in some 50 years, it goes back to the States. So you have an overlay of federal law, FDA, Health and Human Services, civil rights that apply to the states, but also state laws. And so I think there's going to be a narrow set of drugs that are going to be affected by this.

I've heard people talk about some other drugs, methotrexate, things like that, that have other indications. Frankly, I don't think that those are going to be the main drugs that state enforcement agencies or prosecutors are looking at, they're going to look at the 2 main pills that are used for abortions. And so I think the effect is going to be that in some states, pharmacists won't be able to use medications that have been approved by the FDA for certain indications, because their states will have criminal sanctions perhaps for it. You know, when you think about it, think about the pharmacy laws. You've got 50 states, 50 pharmacy practice acts, and they're similar but they can be very different. And we fought a civil war over that because the question had to do with who’s going to have the power to do certain things.

There’s a great article from years ago talking about Lincoln's Gettysburg Address and the Declaration of Independence. So neither of those are binding documents. But Lincoln sort of said that, you know, the Civil War helped to incorporate—he didn't say this expressly but– life, liberty, the pursuit of happiness got incorporated in the constitutional principles in some ways. But it was only after the Civil War that the United States became a singular noun. It used to be the United States are, but after the Civil War the United States is—[it’s] sort of this transition, and that gives you a sense of the history of what it used to be like.

PT Staff: How can a pharmacist in a state with severe abortion restrictions abide by federal law, which enforces nondiscriminatory care?

William J. Stilling, MS, JD: Well, that's a that's an interesting question. I think if a federal law says you must have equal access for women for certain things. Technically, I suppose you could follow federal law, but you would also risk violating state criminal law. So I don't want to give any legal advice here, but it creates a conundrum. It depends on who you work for. Whether the Civil Rights Act applies to you, what kind of prescriptions (everybody fills government prescriptions) so it creates a real conundrum that I don't think the answer has been clearly worked out yet. And it's a question that will be answered differently. And with great confidence by people on either side, I just don't think there's an easy answer right now. In general, federal law will trump state law— there are various things about preemption. And in fact, the day of, or the day after, Merrick Garland came out and said that federal law will apply in terms of the FDA and, and things like that.

PT Staff: What continue to be roadblocks for pharmacists and patients?

William J. Stilling, MS, JD: Well, the issues are that the law continues to change, I guess, depending on what your perspective ism is. Terrible, controversial issue. Since a terrible very controversial issue with strong feelings on each side, I think there will be roadblocks to the ability of people to get access to some to care and medications. That is has been shown to be safe and effective for these conditions. I think another roadblock is that there's so much uncertainty and we can see with the corporations now where they're getting certified, but then they're then they're being threatened with lawsuits and having to make legal decisions. And then states entities, people groups, they can't win if they protect themselves, but I think a lot of the barriers, or the uncertainty and the fear pharmacists will have as they move forward in certain states.