CVS, Walgreen’s Birth Control Policy Highlights Supreme Court Influence
Experts said the Supreme Court may be willing to reconsider a standard set in 1977 for how far employers must go to accommodate a worker’s religious beliefs.
Why CVS, Walgreens are facing backlash over their birth control policies
Walgreens and CVS Pharmacy are facing a backlash over policies allowing pharmacists to refuse contraceptive prescriptions. Here’s what we know.
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- Federal laws require employers to make “reasonable” accommodations for workers’ religious beliefs.
- Legal experts say the drugstore chains’ policies appear to be in line with the law.
- Debate on the issue has intensified since the Supreme Court Roe v. Wade overruled in June.
WASHINGTON — The nation’s largest drugstore chains have been under scrutiny in recent weeks over policies allowing pharmacists to refuse to dispense birth control products if it conflicts with their religious or moral beliefs.
Experts say the law is mostly on their side.
Title VII of the Civil Rights Act of 1964 requires companies to consider workers’ religious beliefs so long as the request does not create “unreasonable hardship” for an employer. How far employers must go is a matter of debate – but the Supreme Court has repeatedly signaled an interest in expanding, not restricting, religious rights.
CVS Pharmacy told USA TODAY last week that it has a policy similar to that of competitor Walgreens, allowing pharmacists to refuse contraceptive prescriptions or refuse to sell condoms. This policy has sparked outrage on the left and a spate of viral posts on social media. According to experts, however, the companies appear to be doing what the law dictates.
That Companies have stressed that when a pharmacist has a religious or moral objection to contraception, the prescription or sale would be handled by another pharmacist.
Politics: CVS Pharmacy, Walgreens allow pharmacists to refuse birth control prescriptions
explainer: What to do if a pharmacist refuses to fill out your contraceptive prescription
“Can the individual pharmacist refuse? The answer is yes. Under Title VII and the case law developed by the Supreme Court and lower courts, there is an obligation on the employer to provide reasonable accommodation,” said Merrick Rossein, a professor in the City University of New York School of Law.
The situation, Rossein said, could become more difficult in rural areas, where finding another pharmacist could be more difficult. And there’s quite a bit of leeway as to what “reasonable accommodation” means. But Rossein and other experts say it’s more a question of when — not if — the Supreme Court will move the law further in favor of religious freedom and religious housing.
Sonia Suter, a professor at George Washington University Law School, said whether a pharmacist who refuses to fill a prescription must then refer a customer to another pharmacist varies from state to state.
“I wouldn’t be surprised if we started to see more states banning or allowing (prescription) denials, so it’s really a question of what your law allows because there are so many differences there,” Suter said .
- What is the problem? Some of the country’s largest drugstore chains have introduced policies allowing pharmacists to refuse to sell items that go against their beliefs, including birth control.
- what is the law Federal and some state laws require companies to accommodate religious beliefs. The Supreme Court ruled in 1977 that such adjustments can be very small, although experts predict this could change.
- What’s the big picture? Following the Supreme Court decision in Roe v. Wade and ending the constitutional right to abortion enshrined in this 1973 case, there were significant concerns about whether contraception would be next in line. The majority of the court said the abortion ruling would not affect contraception or same-sex marriage.
What does it mean for patients?
Cynthia Harper, a professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco, said the stakes are high for patients seeking contraception. Harper said that large companies like CVS and Walgreens did better than smaller, independent pharmacies when it came to setting sensible policies on contraceptive access.
“It’s a very contentious issue,” said Harper, who leads the Beyond the Pill program at UCSF’s Bixby Center, which promotes access to contraception. “There have been complaints about people’s beliefs about birth control and they are not scientifically based. It’s just beliefs that people hold and I expect there will be a lot more legal action in this area.”
What did the Supreme Court say?
In the 1977 decision in Trans World Airlines v. Hardison, the Supreme Court held that the law requires employers to accommodate religious requests from employees so long as the accommodations do not constitute “unreasonable hardship.” The court defined undue hardship as anything that causes more than “de minimis” or marginal costs.
This is a low standard and means employers could avoid making accommodations in many situations, e.g. Critics say the court built the de minimis line more or less out of thin air. And several of the court’s conservative judges have said in recent disagreements that they are prepared to reconsider it.
“I have no doubt that the next time it comes up in real time, they will address this issue,” said Michael Foreman, director of Penn State Law’s Civil Rights Appeals Clinic.
Pharmacy companies likely realize this, and, Foreman speculated, while they “could get by with the de minimis standard,” the smart legal strategy will instead be to “do their best.”
What does Title VII say about religion?
Federal law prohibits an employer from refusing to hire or fire any person or otherwise with respect to their compensation, conditions, or privileges in employment based on race, color, religion, sex, or national origin.” The The law requires employers to make reasonable accommodations for “religious observance and practice” if this can be achieved without “unreasonable hardship” on the employer.
What did Supreme Court justices say about religious shelters?
Associate Justices Neil Gorsuch and Samuel Alito have been the most vocal in opposing the court’s current standard.
The Supreme Court last year declined to hear a lawsuit filed by a Jehovah’s Witness who wanted to make sure his work schedule at Memphis Light, Gas and Water didn’t conflict with his desire to attend church services. The court did not explain why it refused to take the case, but Gorsuch and Alito disagreed sharply.
“There is no bar to our review and no one else is to blame,” Gorsuch wrote in a statement, which Alito joined. “The only mistake here is made by the court itself – and it’s high time the court corrected it.”
Overall, the Conservative High Court majority of 6-3 handed supporters of the religious retreat a clean victory in the term that ended in June. It sided with a former high school football coach who lost his job after praying after games at the 50-yard line and struck down a Maine state ban on using public funds to attend schools that offer religious education and ruled that the city of Boston could not refuse a Christian group to fly a flag at City Hall in conjunction with secular organizations.
What did the pharmacy companies say?
Amy Thibault, spokeswoman for CVS, told USA TODAY that “under federal law, we must give due account to a religious belief, and in certain states a moral or ethical belief, that may prevent a pharmacist or pharmacy technician from dispensing certain medications,” Thibault said that an objecting pharmacist must request accommodation from CVS in advance and make arrangements to ensure patient care, either from another pharmacist or elsewhere.
Fraser Engerman, a spokesman for Walgreens, said pharmacists can refrain from fulfilling a prescription or sale if it conflicts with their beliefs. Engerman said Walgreens’ policies are similar to those of other retailers because pharmacies must follow the same state and federal laws when it comes to respecting employee beliefs.
“Our team members are required to sell all products in our stores, except in the rare instances where the law requires further precaution,” Engerman said in an email. “Even then, the employee must request specific time off, which will be reviewed and approved by management through a formal process based on our statutory policies and never at the sole discretion of the team member.”
Letter: Durbin and Duckworth are urging Walgreens CEO to reconsider pharmacy belief policies
Engerman said that Illinois-based Walgreens is following up on a letter sent last week by Sens. Dick Durbin, chairman of the Senate Judiciary Committee, and Tammy Duckworth about company policy. The senators, both Illinois Democrats, called on the company to “revise your policy to ensure your customers’ privacy is respected and that they are more clearly informed about whether they will have full access to contraceptives in your stores.”
Why does it matter?
Many Americans are concerned about access to contraception after the Supreme Court’s decision in this year’s abortion case. This is because the reasoning of the court in Roe v. Wade was based on the same reading of the Constitution as his 1965 decision in Griswold v. Connecticut, which nullified a law banning contraception.
Alito, writing for the majority of the court on Roe’s overturning, distinguished between abortion and other rights that the court identified in its reading of the 14th Amendment by claiming the former involved “fetal life”.
“Roe’s defenders characterize the right to abortion as similar to the rights recognized in previous decisions affecting matters such as intimate sexual relationships, contraception and marriage, but abortion is fundamentally different,” Alito wrote.
If and when the Supreme Court revisits the issue of housing religious people in the workplace, it could have far-reaching implications, not just for people seeking contraception, but for corporate dress codes — including headscarves, turbans and beards — as well for schedules allow staff to worship.