CVS Took on Big Tobacco Nine Years Ago: Is Big Religion Next?

CVS Health pulled all tobacco products from store shelves almost a decade ago and never looked back. Now, the retail giant is facing a challenge of a different sort as religious extremists exert their leverage to ban access to birth control and abortion. CVS has taken some steps to accommodate religious beliefs in the past, but now the company has been pushed into a corner and it may just come out swinging.

CVS expands its public health mission

CVS has been evolving from a simple drug dispensary to a community healthcare provider since 2006 when it purchased the firm Caremark Rx. CVS also acquired Coram, a specialist in home infusion therapies for diabetes and other serious illnesses, seven years later.

In 2014, CVS stopped selling tobacco, in accordance with its new corporate name CVS Health and the launch of its new MinuteClinic and telemedicine services. The company took the hit on tobacco sales with a long-term business plan in mind.

“Eliminating $2 billion in sales is not something that is done every day by a Fortune 12 publicly-traded company…despite this loss in revenue, we were willing to take that risk, to ensure a positive impact on the long-term health of our customers, clients and colleagues,” CVS Senior Vice President Eileen Howard Boone said at the time.

CVS’s tobacco ban quickly had a discernible impact on public health. By 2017, studies began to show that cigarette sales in states with CVS stores declined compared to those without. That result is consistent with other studies showing that smokers reduce or stop smoking when retailers, workplace rules or government regulations cut their access to tobacco products.

CVS is backed into a corner on birth control

Those results lend more weight to the potential for CVS and other retailers to make a significant, positive impact in other areas of public health, including the health of women, girls and other pregnancy-capable people.

That’s where things get complicated. Under Title VII of the 1964 Civil Rights Act, employers are required to make reasonable accommodations for their employees’ religious beliefs, unless doing so would cause an undue hardship for the employer or other employees. For CVS and other retailers, that has meant allowing employees to opt out of conducting certain transactions — including those related to reproductive care.

As critics have pointed out, the opt-out policy encumbers the customer experience and can cause delays that impact health and well-being. Opt-outs can also compromise the customer’s privacy and interfere with their freedom to practice birth control in accordance with their own religious beliefs.

CVS initially enabled its MinuteClinic nurses to opt out of prescribing or even discussing contraceptives. However, in 2021 the company put its foot down. The policy was revised to clarify CVS’s mission to provide public health services on a holistic basis, not a pick-and-choose basis dependent on religion.

Last fall, CVS spokesperson Mike DeAngelis explained the new policy to Becker’s Hospital Review:  "MinuteClinic does not prescribe abortifacients or provide abortion services, but educating and treating patients regarding sexual health … have become essential job functions of our providers and nurses. We cannot grant exemptions from these essential MinuteClinic functions.”

The Becker’s article referenced lawsuits brought by former CVS nurse practitioners in Kansas and Virginia, both of whom claimed they were fired under the new policy. A third former CVS nurse practitioner filed a lawsuit in Texas last month over the same issue. As reported by NBC News and other media, CVS responded as before, explaining that “educating and treating patients regarding sexual health matters — including pregnancy prevention” are essential services at MinuteClinics.

The 23-year expansion of medication abortion

Under normal circumstances, CVS would have a good chance of prevailing in court. However, the circumstances are anything but normal. The Republican-appointed conservative supermajority on the U.S. Supreme Court has already indicated its enthusiasm for throwing settled law and objective facts out the window in support of partisan political positions on reproductive rights and gun safety, among other issues.

In the meantime, another battleground has emerged over the growing use of medication abortion.

Medication abortion has been widely available in the U.S. since 2000 when the U.S. Food and Drug Administration approved the proprietary drug Mifeprex to terminate pregnancies up to seven weeks. The termination is a two-step process in combination with a second drug, misoprostol.

Since then, the FDA has extended the use of Mifeprex to 10 weeks of pregnancy, approved a generic version of mifepristone, and established a standard certification process called the Mifepristone REMS Program.

This trend toward easing access to mifepristone accelerated further during the COVID-19 pandemic when the FDA dropped a longstanding requirement for in-person visits and issued guidelines that permitted telemedicine services and mail delivery.

Healthcare providers advocated strongly for the change. In 2020, the American College of Obstetricians and Gynecologists put out a statement saying: “Clear science and the consensus of the medical community underscore that mifepristone is a safe medication and that the FDA’s in-person dispensing requirement provides no medical benefit to patients.”

U.S. FDA ups the ante on abortion access

Last month the FDA expanded access to medication abortion even further, with new guidance for the REMS Program. For the first time, pharmacies can now dispense prescriptions for mifepristone if they are certified to do so under the REMS Program. The FDA also affirmed that certified pharmacies can dispense abortion drugs by mail.

The agency further indicated that certified pharmacies are not allowed to permit any interference with the 10-week timeline. “Certified pharmacies must ensure mifepristone is dispensed to the patient in a timely manner,” it declared.

That directive appears to support pharmacies like CVS in their efforts to improve access to essential healthcare services, without any delay or inconvenience due to religious objections.

Both CVS and Walgreens have said they are taking steps to be certified under the REMS Program, though they reportedly plan to dispense mifepristone only where permitted by state law.

As for mailing mifepristone across state lines, that is currently a matter of dispute. In December, the U.S. Department of Justice determined that the anti-abortion clause of the Comstock Law — which restricts materials sent through the mail — does not apply to drugs like mifepristone and misoprostol, because they are commonly used in a variety of non-abortion applications.

The gloves come off

The Justice Department also noted that mifepristone is a federally approved drug. Nevertheless, the attorney general of Missouri, Andrew Bailey, is leading a group of 20 state attorneys general who co-signed a letter warning both CVS and Walgreens against dispensing abortion medications by mail.

It's no surprise to see their objections are drawn from thin air. “Abortion pills impose far higher risks of complications compared to surgical abortions,” Bailey stated, in direct contravention of settled science.

It's also no surprise to see the list of co-signers overlap with the same attorneys general who have been railing against “woke capitalism,” including Texas Attorney General Ken Paxton.

Against this backdrop, the crusade against reproductive rights has become a crusade against big business. Leading U.S. corporations have yet to push back in any meaningful way, but the fight over mifepristone could be the straw that breaks the camel’s back.

In a related development, last fall anti-abortion groups brought a case to a federal court in Texas that could overturn the entire FDA approval and rule-making process, with widespread consequences across the entire pharmaceutical industry and related fields.

The Texas judge hearing the case is described as “a Trump appointee with longstanding affiliations with the religious right, including work as an attorney with a conservative Christian legal group based in the state.” Parties in the case have until Feb. 10 to complete their filings, and a decision is expected shortly.

The clock is also running out for U.S. businesses that profess to support diversity, equity and inclusion. The bottom-line and human consequences of providing financial support to right-wing politicians who pander to religious extremists is coming into sharp focus, and they are not pretty.

Images courtesy of CVS Health