In State of Texas v. U.S. Department of Health & Human Services, (WD TX, April 5, 2024), a Texas federal district court dismissed as moot a challenge to an HHS Guidance Document for pharmacies. Initially, HHS issued Guidance reminding retail pharmacies of their non-discrimination obligations. The state of Texas and a pharmacy sued contending that the Guidance required Texas pharmacies to dispense abortion-inducing drugs in violation of Texas law and in violation of religious beliefs of plaintiff pharmacy. HHS denied this and moved for dismissal of the complaint. The court disagreed. The court now describes that decision by saying in part:
So based on the suspicion that Defendants were “smurfing” the administration’s policy goal contrary to the Supreme Court’s holding in Dobbs, the Court shot down Defendants’ motion. [See prior posting.]
Three months after the court refused to dismiss the suit, HHS issued a revised Guidance which explicitly provided that the Guidance does not require pharmacies to fill prescriptions for the purpose of abortions. The court went on:
[D]espite the textual changes, which appear crafted specifically to capitulate to Plaintiffs’ claims, Plaintiffs remain unpersuaded....
Plainly put, Plaintiffs’ concern is that anyone—pregnant or not—can walk into a pharmacy with a prescription for methotrexate, which the pharmacy must fill under every circumstance because the prescription was lawfully prescribed for a non-abortion purpose like rheumatoid arthritis. It’s not an unreasonable concern....
From the Court’s perspective, it’s hard to account for the Revised Guidance’s plain text, Defendants’ reasons for issuing the Revised Guidance, and Defendants’ in-person statements, but then still conclude that Plaintiffs will be forced to dispense drugs for abortion purposes. Indeed, it seems the only way the Court could even “reasonably expect” that Plaintiffs’ alleged injury would occur at this point would be for the Court to disregard all of Defendants’ actions as deceptive litigation posturing.
To be sure, that argument appeals to the Court’s healthy distrust for the fourth branch of government. But there is no evidence that Defendants have tried to enforce these “obligations” against Mayo or any pharmacy in Texas in the almost two years since the Pharmacy Guidance was issued. ...
Plaintiffs have received everything they asked for; they should take the win. As a result, the issues are now moot and the Court lacks jurisdiction.
ADF issued a press release reacting to the decision.
