Texas Attorney General Ken Paxton (R) on February 7, 2023, filed a lawsuit in the U.S. District Court for the Western District of Texas challenging July 2022 guidance issued by the U.S. Department of Health and Human Services (HHS) that, according to Paxton, violates state sovereignty by seeking “to require pharmacies that receive Medicare and Medicaid payments to stock and dispense abortifacients for elective abortion purposes [and] threatens legal action against those pharmacies and pharmacists that do not.”
President Joe Biden (D) on July 8, 2022, issued an executive order that addressed the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization and argued, “Access to reproductive healthcare services is now threatened for millions of Americans, and especially for those who live in States that are banning or severely restricting abortion care.” In response to the executive order, HHS issued guidance aiming in part “to remind the roughly 60,000 retail pharmacies in the United States of … the nondiscrimination obligations of pharmacies under federal civil rights laws,” according to the guidance.
Paxton argues that HHS acted in excess of its statutory authority when it issued the guidance—legally non-binding agency documents aimed at interpreting or advising interested parties about rules or laws. The HHS guidance, according to Paxton, misinterprets federal law to effectively require pharmacies to dispense abortion-inducing medications. Paxton further argues that the HHS guidance violates state sovereignty by attempting to preempt state laws regulating abortion. “The Biden Administration knows that it has no legal authority to institute this radical abortion agenda, so now it’s trying to intimidate every pharmacy in America by threatening to withhold federal funds,” argues Paxton in the lawsuit.
HHS had not responded to the lawsuit as of February 8, 2023.