USA TODAY International Edition

Law on side of workers with religious objection

Concerns linger over access to birth control

- John Fritze and Sara Edwards

WASHINGTON – The nation’s largest drugstore chains have come under scrutiny in recent weeks for policies that allow pharmacist­s to refuse to dispense birth control if doing so conflicts with their religious or moral beliefs.

For the most part, experts say, the law is on their side.

Title VII of the Civil Rights Act of 1964 requires companies to accommodat­e workers’ religious beliefs as long as the request doesn’t create an “undue hardship” on an employer. Just how far employers must go is open to debate – but the Supreme Court has repeatedly signaled an interest in expanding religious rights, not limiting them.

CVS Pharmacy told USA TODAY last week that it has a policy similar to one adopted by competitor Walgreens, allowing pharmacist­s to refuse prescripti­ons for birth control or decline to sell condoms. But the companies, experts say, appear to be doing what the law requires.

“Can the individual pharmacist decline? The answer is yes. Under Title VII and under the caselaw as developed by the Supreme Court and the lower courts, there is an obligation by the employer to provide a reasonable accommodat­ion” for bona fide religious belief, said Merrick Rossein, a professor at City University of New York School of Law.

Sonia Suter, a professor at George Washington University Law School, said that whether a pharmacist who refuses to fill a prescripti­on must then refer a customer to another pharmacist

varies by state.

“I wouldn’t be surprised if we started to see more states prohibitin­g or permitting ( prescripti­on) refusals, so it’s really a question of what your law allows because there is so much variety there,” Suter said.

● What’s the issue? Some of the nation’s largest drugstore chains have policies in place that allow pharmacist­s to decline to sell items that conflict with their beliefs, including contracept­ion.

● What’s the law? Federal and some state laws require companies to make accommodat­ions for religious beliefs. The Supreme Court ruled in 1977 that such accommodat­ions can be very minimal, though experts predict that may change.

● What’s the big picture? After the Supreme Court’s decision to overturn Roe v. Wade and end the constituti­onal right to abortion it establishe­d in that 1973 case, there has been considerab­le angst over whether contracept­ion will be next. The court’s majority said the abortion ruling wouldn’t affect contracept­ion or same- sex marriage.

What has the Supreme Court said?

In the 1977 decision in Trans World Airlines v. Hardison, the Supreme Court noted that the law requires employers to accommodat­e workers’ religious requests as long as those accommodat­ions don’t create an “undue hardship.” The court defined undue hardship as anything having more than a “de minimis,” or trivial cost.

That’s a low standard and it means employers could avoid making accommodat­ions in many situations

“I have no doubt that they’re going to take this issue the next real time it presents itself,” said Michael Foreman, director of the Civil Rights Appellate Clinic at Penn State Law.

What does Title VII say?

The federal statute prohibits an employer from refusing to hire “or to discharge any individual, or otherwise to discrimina­te against any individual with respect to his compensati­on, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.”

The law requires employers to make reasonable accommodat­ions for “religious observance and practice” as long as that can be accomplish­ed without “undue hardship” on the business.

What have pharmacies said?

Amy Thibault, CVS spokeswoma­n, told USA TODAY that “under federal law, we must reasonably accommodat­e a religious conviction, and in certain states, a moral or ethical conviction, that may prevent a pharmacist or pharmacy technician from dispensing specific medication­s.”

Fraser Engerman, a spokesman for Walgreens, said that pharmacist­s are permitted to walk away from fulfilling a prescripti­on or a sale if it conflicts with their beliefs. Engerman said Walgreens’ policies are similar to other retailers since pharmacies have to follow the same state and federal laws when it comes to respecting employees’ beliefs.

Engerman said Walgreens, which is based in Illinois, is following up on a letter sent last week by Sens. Dick Durbin, the chairman of the Senate Judiciary Committee, and Tammy Duckworth, about the company’s policy.

Why does it matter?

Many Americans are concerned about access to contracept­ion following the Supreme Court’s decision in the abortion case this year. That’s because the court’s reasoning in Roe v. Wade rested on the same reading of the Constituti­on as its 1965 decision in Griswold v. Connecticu­t, which invalidate­d a law that forbids contracept­ion.

Alito, writing for the court’s majority on overturnin­g Roe, drew a distinctio­n between abortion and other rights the court identified in its reading of the 14th Amendment by asserting the former involves “fetal life.”

“Roe’s defenders characteri­ze the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contracept­ion, and marriage, but abortion is fundamenta­lly different,” Alito wrote.

 ?? RICH PEDRONCELL­I/ AP ?? Due to religious or moral beliefs, some pharmacist­s refuse to dispense birth control.
RICH PEDRONCELL­I/ AP Due to religious or moral beliefs, some pharmacist­s refuse to dispense birth control.
 ?? JOSE LUIS MAGANA/ AP ?? Abortion- rights activists leave hangers on the fence as they protest outside the Supreme Court in Washington on July 4. After the Supreme Court’s decision to overturn Roe v. Wade and end the constituti­onal right to abortion it establishe­d in that 1973 case, there has been considerab­le angst over whether contracept­ion will be next.
JOSE LUIS MAGANA/ AP Abortion- rights activists leave hangers on the fence as they protest outside the Supreme Court in Washington on July 4. After the Supreme Court’s decision to overturn Roe v. Wade and end the constituti­onal right to abortion it establishe­d in that 1973 case, there has been considerab­le angst over whether contracept­ion will be next.

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