Walgreens Sued Under Human Rights Act After Pharmacist Refuses to Fill Rx

This month we look at a case that was filed towards the end of 2017, by the American Civil Liberties Union of New Mexico (ACLU-NM) and the Southwest Women’s Law Center (SWLC) against Walgreens. Although this case has not been decided yet (and may not be for quite some time – the law moves slowly), it is significant because of the topic, and because of a similar scenario in the same state in 2012.

In 2012, the ACLU-NM and SWLC contacted Walgreens after complaints that Walgreens’ pharmacists refused to fill prescriptions for patients’ birth control pills on at least two occasions. After many conversations, Walgreens provided an assurance that “to balance the needs of our pharmacists and our customers, Walgreens has developed appropriate policies and procedures for our pharmacies to assure that these prescriptions, for example, birth control, are handled as efficiently as other prescriptions without imposing any burden on the customer.” Based on this assurance, the ACLU-NM and SWLC agreed not to move forward with filing a complaint under the New Mexico Human Rights Act. 

The Current Case

In mid-2016, MS, the mother of a teenage daughter (HS), went to her local Walgreens pharmacy where she regularly fills her family’s prescriptions to have three prescriptions filled for her daughter in preparation for a procedure to insert an intrauterine device (IUD) the following day. The prescriptions were for a mild pain reliever, an anti-anxiety medication, and misoprostol. Misoprostol in this case was to be used to soften the cervix in preparation for the IUD insertion, but the medication is also used to prevent and treat stomach ulcers, treat postpartum bleeding, and start labor. In combination with methotrexate or mifepristone it is also used for medical abortions. 

At the pharmacy counter, MS was told that the pharmacy had filled two of the prescriptions but that she would have to drive to another Walgreens location for the third prescription – misoprostol.  When MS asked why, she was told that although the pharmacy did have the medication in stock, that the pharmacist on duty would not fill the prescription because of his personal beliefs. When MS confronted the pharmacist to ask for clarification about why he wouldn’t fill a valid prescription, he allegedly told her that he had “a pretty good idea” what the medication was going to be used for.

MS had no choice but to drive to another Walgreens during rush hour because the medication was needed that evening, as the procedure was the next day.

New Mexico Human Rights Act

Under the New Mexico Human Right Act, it is an unlawful discriminatory practice for a public company like Walgreens “to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap…” Sex discrimination in the state is defined as discrimination on the basis of “pregnancy, childbirth, or related condition.” In other words, public companies may not make a distinction, directly or indirectly, in offering or refusing to offer services, goods, etc., to women based on their reproductive health needs. Despite the fact that the medication was in stock, MS was turned away from the pharmacy for a reason related to reproductive health.

“Had a man shown up with a prescription for the same medication to treat stomach ulcers, we have no doubt he would have received his medication immediately,” said Pamelya Herndon, Executive Director of SWLC, in a statement on the ACLU-NM website. “But because our client was a woman, the Walgreens employee automatically assumed the medication was for a reproductive health purpose that he personally opposed, forcing her to travel to a different pharmacy. That’s not right. Women deserve the same level of care and respect as men in a Walgreens pharmacy.”

The complaint filed against Walgreens alleges that rather than ensure that women are able to access reproductive health medications without facing discrimination, “Walgreens has implemented a policy whereby women bear the entire burden of accommodating its employee’ religious or moral objections.”

The Takeaway

Balancing the personal beliefs of pharmacists and the legitimate rights of patients to access validly prescribed medications is complicated, and a topic that has been hotly debated in the past. Forcing the patient to travel to another pharmacy may well be viewed as too much of a burden. It will be enlightening to see how New Mexico will handle it. The plaintiffs in the case are asking for: a declaration that Walgreens discriminated against them in violation of the New Mexico Human Rights act; injunctive relief requiring Walgreens to change its policy to ensure that women are able to fill their valid reproductive health prescriptions without experiencing discrimination; and compensatory damages. 

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly Director of Periodicals at the American Pharmacists Association.

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