Update, February 27, 5:15 p.m.: CVS spokesperson Michael DeAngelis responded to this article, noting in an email that “the reason we require employees to inform us in advance if they have a deeply-held religious conviction against selling emergency contraception is so we can ensure that a store is staffed appropriately to provide this product to the customer promptly.”

DeAngelis also said that sending a customer to another pharmacy for emergency contraception “would not be what we consider satisfying a customer promptly.” He added that “serving the customer is our overriding priority and as such would require the sale of the item.”

In previous emails with DeAngelis about CVS policy, he responded affirmatively to the questions “Does CVS still … [r]equire a partner pharmacist to fill a prescription if a pharmacist objects? And if another pharmacist is not on duty, require the pharmacist to contact a nearby pharmacy (CVS or no) to refer the filling of the prescription?” and “…is there [a] policy that [sales associates] don’t have to sell a drug they object to, while being required to refer that sale to another associate or, if necessary, store?”

At least two CVS stores have not followed this policy in the past.

Imagine this: You had sex and the condom broke. You definitely don’t want to get pregnant. You cannot afford to have a baby. The next morning you walk into your neighborhood pharmacy to get emergency contraception. The pharmacist looks at you and says no, he won’t give it to you, that’s not something he believes in, his buddy here behind the counter doesn’t either, and you’d better go somewhere else.

Astonishingly, this scenario does not violate a corporate-level policy governing more than 7,600 CVS/pharmacy stores in the United States. Despite recent changes from the Food and Drug Administration, certain types of emergency contraception, including but not limited to brands sold as ella and Next Choice, still require a prescription or are behind the pharmacy counter and require proof of age. When the personal beliefs of all available pharmacists on duty conflict with someone’s need for emergency contraception, CVS specifies that the person seeking emergency contraception should go to another store.

Another type of emergency contraception, Plan B One-Step, is supposed to be sold on the shelf for anyone to pick up and bring to the cash register, but the refusal policy at CVS also extends to sales associates who may refuse to sell emergency contraception that would otherwise be available without a prescription, or who may not be effectively trained to know that it can be purchased by young teens. Mike DeAngelis, a CVS spokesperson, told Rewire in an email that the vast majority of its emergency contraception sales are non-prescription and do not require a pharmacist.

This matters. CVS is an influential player in the industry, and arguably the largest: It receives the most prescription revenue of any pharmacy in the United States. That there is no guarantee of in-store access to contraception is an especially curious thing to consider when the chain is making headlines for its plan to stop selling tobacco products in order to hone a focus on providing for health-care needs. But whose health-care needs?

Emergency Contraception and Its Intended Availability: A Primer

Emergency contraceptive pills prevent pregnancy after unprotected sex or contraceptive failure, and are most effective when taken as immediately as possible. There are different rules about how emergency contraception should be dispensed, depending on its variety:

• Plan B One-Step (progestin-only) is supposed to be available on an open shelf for purchase by people of all ages, no identification required.
• My Way, Next Choice One Dose, and Levonorgestrel (progestin-only) are supposed to be available according to age:
  • by prescription only for those 16 and younger, and
  • behind the pharmacy counter without a prescription (or on request) for those 17 and up.
• Ella (ulipristal acetate) is supposed to be available by prescription only, regardless of age.

In this climate, misinformation about the availability of emergency contraception reigns, according to a recent study published in the Journal of Adolescent Health. Researchers representing themselves as women 17 years of age called 940 pharmacies in five major cities and were told 20 percent of the time that they could not get emergency contraception at all. This wasn’t the only completely false information they found: It wasn’t uncommon to hear that a parent or legal guardian must come along, or that a partner or other person couldn’t buy a prescription for them.

Another thing the callers heard? Pharmacy staff sometimes shared personal reasons for refusing to dispense or stock emergency contraception. Which brings us back to the refusal policy held by CVS, a behemoth that empowers its employees to say no and ultimately puts the burden on accessing emergency contraception back to the customer.

A Corporate Policy Allowing Refusals at CVS

CVS has a longstanding policy that pharmacists and sales associates with personal objections to emergency contraceptives or other drugs are not required to dispense or sell them. The policy also offers ostensible protections to customers and patients that go almost but not quite far enough—a difference made critical by the time-sensitive nature of the need for emergency contraception.

Ten years ago, the Minnesota chapter of the National Organization for Women began to picket CVS stores in the Minneapolis/St. Paul metropolitan area because CVS would not guarantee in-store access to contraceptives, including emergency contraceptives. (Disclosure: I was president of the group at that time.) What caught our attention then was a rash of incidents, some local and some national, of pharmacists in a variety of chains refusing to dispense contraception. The first case we saw was that of a woman who was denied a refill of her monthly prescription at a CVS in Fort Worth, Texas. So we wrote CVS, and spokesperson Tracylynn Dubois cleared up the confusion. Here’s what Dubois told us:

We respect the deeply held personal beliefs of our pharmacists if they have an objection to filling a given medication. Our policy is that … [if another pharmacist] … is not on duty, the pharmacist must contact a nearby pharmacy, whether it is another CVS or a competitor, in order to refer the customer there to have the prescription filled.

This policy still stands, as confirmed by a February 10 email to Rewire from company spokesperson Mike DeAngelis.

Notably, CVS employees are supposed to proactively declare their desire to refuse to fill or sell requests for emergency contraception. If CVS is on its own initiative placing responsibility on its employees to share their refusal to dispense a health product, and it requires those employees to refer the sale to another employee, why won’t CVS accept the responsibility to ensure that another pharmacist who isn’t biased against preventive health care for women is scheduled to work at the same time?

A Health-Care Company Not Acting Like One

CVS is getting a lot of attention for its decision to stop selling tobacco, and it is positioning itself as a health-care company. As Larry J. Merlo, president and CEO of CVS Caremark, which operates CVS/pharmacy stores, said in a press release about that decision, “CVS Caremark is playing an expanded role in providing care through our pharmacists and nurse practitioners. The significant action we’re taking today by removing tobacco products from our retail shelves further distinguishes us in how we’re serving our patients, clients and health care providers and better positions us for continued growth in the evolving healthcare marketplace.”

If CVS wishes to keep moving in the direction of providing health care, the women who patronize it need to know they can come in to the store for contraceptives and leave that same store with contraceptives in hand.

Tobacco is a product that we know kills people, and it makes sense for a health company to pull it from its shelves. Contraceptives, on the other hand, are basic medical care for women, and patients of all genders deserve to know these health-care needs will be met by CVS. Nearly two-thirds of women of reproductive age currently use a contraceptive method. It should be noted that the CVS refusal policy extends to all prescriptions, including all contraception, and not just emergency contraception.

From the pharmacy to the religiously affiliated institution providing health insurance, access to contraceptives has come to be framed as two sets of individual liberties, pitted in competition: the right of a woman to access contraceptives, and the right of another individual to act according to his conscience. This frame is troubling when it comes to the provision of medical care, Greg Lipper, senior litigation counsel at Americans United for Separation of Church and State, told Rewire. He suggests that when we’re looking at this issue, we should see the question this way: “Does a pharmacist have a right, due to his or her religious beliefs, to interfere with the rights of third parties—by interfering with the medical care of customers who have made their own, independent decisions to purchase and use contraception?”

For now, CVS continues to answer this question the wrong way.

Not a Reasonable Accommodation

CVS is claiming to be a health-care provider while putting a heavier burden on women to get access to primary care. Facing refusal at one store may mean that a woman has to travel a great distances to find another store, particularly in rural areas and for people with limited transportation options and those with disabilities. This scenario is even more troubling given the time-sensitive nature of emergency contraception, which relies on taking a specific dosage in a limited window of time, generally between 24 and 120 hours after unprotected sex, with an efficacy rate that is higher the sooner it is taken. Further, you just may not have additional “time” to take away from work, family, or other responsibilities on a wild goose chase in search of a legal drug that you have a constitutionally protected right to use.

In a follow-up email, Rewire asked DeAngelis to explain what happens when CVS is the only provider in town, and the question was not answered. However, DeAngelis wrote, “The overriding priority regarding the sale of emergency contraception is that the customer’s needs must be met.” This is a logical priority in need of a commitment, in the form of making sure that at least some pharmacists and sales associates willing to dispense and sell emergency contraception are on duty when the lights turn on.

CVS could, and should, guarantee in-store access to emergency contraception. It is reasonable to expect CVS to take a page from its own playbook and step up as a health-care company—in this case changing its policy to guarantee that emergency contraception and all other forms of contraception will be accessible in every store, regardless of individual employees who object to it. This is not about personal beliefs, this is about health care, and no one has the right to deny anyone else access to care based on ideology. Customers of CVS should start demanding that the chain treat all persons equally, including those in need of contraception, whether in an emergency or not.

An Rewire petition urges CVS to change its policy and guarantee in-store access to emergency contraception.