USA TODAY International Edition
Law on side of workers with religious objection
Concerns linger over access to birth control
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 conflicts 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 fide 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 fill 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 conflict 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 affect 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 defined 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 specific medications.”
Fraser Engerman, a spokesman for Walgreens, said that pharmacists are permitted to walk away from fulfilling a prescription or a sale if it conflicts 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 identified 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 different,” Alito wrote.