Real Time: Wal-Mart To Sell Cheaper Birth Control

Amie Newman

Wal-Mart is now selling birth control for less than the cost of a t-shirt. Be careful what you wish for...

"Real Time" is a new feature for Rewire. In our ceaseless attempt to keep our already well-informed readers appraised of current news, we'll be publishing short 'n' quick "Real Time" posts on the latest, breaking news stories for you! So, comment away. Tell us what you think. Keep us on our toes! We'll keep you updated in "Real Time" on the reproductive and sexual health issues everyone's talking about!

Ah, only in America. The Democratic presidential candidates are unveiling their health care plans that attempt to cover millions of Americans with slightly lower premiums and affordable prescription co-pays but it's Wal-Mart that announces it will sell birth control and fertility drugs for $9 a pop. Why is it that in this country, only a giant corporation, able to pressure its suppliers to lower prices, can make health care more affordable to Americans, while our political system isn't strong enough to bring about systematic health care change?

Last year, Wal-Mart began selling prescription drugs for $4. This year, they've announced an expansion of that program to cover medication for, among other things, glaucoma, attention deficit disorder, and, yes, contraception. Newsday had this to say:

"The company said it has also added $9 birth control prescriptions, which it said will save women as much as $250 a year. Wal-Mart said that the national average for birth control and fertility drugs ranged from $24 to $30 a month."

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Now women can access birth control for low, low prices. Although I doubt the Wal-Mart branded yellow, smiley -face will advertise Ortho-Tri-Cyclin in their commercials…

Clearly, Wal-Mart is making up for its image issues when it was pummeled by activists and the media for skimping on health care coverage for its employees, costing tax payers millions of dollars to cover those employees. Bill Simon, an executive Vice President for the store, says this about the "impact" of the program thus far:

"…we have removed over $610 million from the cost of health care in the U.S. That's the simple math."

Another spokesperson for Wal-Mart makes the store sound like it's in cahoots with a fairy godmother:

"This is all just due to the buying power of Wal-Mart," Casarona said. "We just talk to the (drug) manufacturers and tell them we want to save customers money, that they need to work with us. We're not making a lot of money (from the program) but it is profitable."

"We just talk to the drug manufacturers and tell them we want to save customers money…" Hmm. "Talk", huh? It's hard to argue that cheaper access to birth control and fertility drugs is a bad thing. But when it comes from Wal-Mart are we making a deal with the devil?

Commentary Contraception

Dear CVS: A Real ‘Health-Care Company’ Guarantees In-Store Access to Birth Control

Erin Matson

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.

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.

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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.

Analysis Law and Policy

Why It’s So Hard to Sue Wal-Mart for Gender Discrimination

Jessica Mason Pieklo

A recent decision out of San Francisco shows just how difficult it is to hold large corporations accountable through class-action lawsuits, thanks to the Roberts Court.

It can take years for the effects of even the big Supreme Court decisions to really take hold. Consider the case of Wal-Mart v. Dukes two years ago, a decision that revoked class-action certification from what would have been one of the largest gender bias lawsuits of its kind. At the time, more than 1.5 million female Wal-Mart workers claimed the retailer unlawfully discriminated against them when it came to their pay and promotions, because of a corporate culture that enabled stereotyping of female workers. The Supreme Court rejected these claims, holding that the women didn’t have enough in common to justify hearing their claims against Wal-Mart together as one case.

Disappointed but undeterred, the women pressed on, determined to bring their claims even if they were narrower. But last week the plaintiffs suffered another setback as a federal judge in San Francisco dismissed a claim by 150,000 of the 1.5 million original plaintiffs on the grounds that while the new proposed class of plaintiffs is definitely smaller than the original class rejected by the Supreme Court, there still isn’t enough proof the women suffered similar treatment to justify hearing their claims all at once. Instead of seeking to press their claims on a nationwide class of workers at Wal-Mart’s 3,400 stores, as the original complaint against the retail giant did, the female workers had asserted that they represented about 150,000 employees in what is called the “California region” of the company—an area made up of three Wal-Mart geographic zones and 250 stores. This new class of plaintiffs sought to represent any female workers who had been on the company payroll between December 26, 1998, and December 31, 2002, and who were subject to pay scales based on hourly rates and on salary levels, and were eligible for promotion to management trainee or area manager.

But this smaller, regional approach was not enough to convince the federal courts to allow the claims to proceed. U.S. District Judge Charles R. Breyer, a Clinton appointee and brother of Supreme Court Justice Stephen Breyer, concluded:

[T]hough they have cut down the raw number of proposed class members significantly, Plaintiffs continue to challenge four different kinds of decisions across hundreds of decision makers, inviting failures of proof at multiple points in each region.

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This new, smaller class “continues to suffer from the problems that foreclosed certification of the nationwide class.” Though the workers “insist that they have presented an entirely different case from the one the Supreme Court rejected, in fact it is essentially a scaled-down version of the same case with new labels on old arguments.”

According to Breyer, this new group of plaintiffs failed both in its claim that Wal-Mart pay and promotion practices treated female workers worse than male workers, and its separate claim that those practices had a more negative impact on women than on men. Breyer conceded that the suing employees “had amassed substantial evidence of discrimination against women that occurred at Wal-Mart stores during the period at issue in this suit,” but, thanks to a new standard set by the Supreme Court in the 2011 decision, even this substantial evidence of discrimination was not enough to justify a class-action lawsuit against the retailer.

The problem, however, is that this challenge of proof is largely in the eye of the beholder. When this case first reached the Supreme Court in 2011, the plaintiffs presented statistical evidence suggesting widespread gender discrimination in Wal-Mart’s hiring practices, discrimination that was made possible because of pervasive sex stereotyping in the corporate culture of Wal-Mart. As Justice Ruth Bader Ginsburg explained in her dissent, “Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only 33 percent of management employees,” while “the higher one looks in the organization the lower the percentage of women.” In his opinion last week, District Judge Breyer conceded the record had ample evidence of a discriminatory culture within Wal-Mart, but because the conservative majority on the Roberts Court rejected the use of statistical sampling to prove liability on a class-wide basis, (despite the fact the method had been permitted in other cases) he had no option but to dismiss the smaller, California region of Wal-Mart workers’ claims. Instead, he explained, the Supreme Court’s 2011 decision made it clear that to meet the “commonality” requirement to justify a class action, plaintiffs would still have to offer individualized proof of their claims, proof that is possible to develop only through individual investigations and complaints—proof that the 150,000 plaintiffs still could not produce. In short, the Supreme Court’s 2011 decision created an impossible standard for potential class-action plaintiffs to meet, and the penalty for failing to meet that impossible standard was to lose the ability to bring a class-action claim at all.

In many ways, last week’s decision to toss out the newer class of plaintiffs was inevitable after the Dukes decision, and was just the result the conservative justices were going for. Class-action lawsuits enable groups of individuals with similar legal claims to join together into a single lawsuit and bring their claims as one. Class-action lawsuits are incredibly important tools to hold corporations accountable, especially in cases like the Wal-Mart pay claims where individual damages may not amount to a lot of money but in aggregate do immeasurable damage to workers and the economy. They are also critical in actually holding corporate power accountable. Lawsuits are expensive, and wage claims don’t often add up to enough money for the victim to justify the expense of hiring a lawyer—and virtually no lawyer is willing to take a low-dollar case on a contingency fee basis, because the legal fees will likely outweigh the overall dollar value of the claim. But if each individual claim is counted together as one then suddenly those small claims add up to one very big, very expensive lawsuit for a company like Wal-Mart to defend or settle. The idea is that the threat of class-action lawsuits, both in terms of cost to defend and the risk of a large verdict, is enough to get corporations to change their behaviors and police themselves. Obviously that’s not happening, and thanks to the Supreme Court there’s not a lot workers can do to change that fact.

The district court’s decision leaves the female workers to try to prove their own claims of gender discrimination individually. The plaintiffs could appeal this decision to the Ninth Circuit Court of Appeals, and ultimately to the Supreme Court. But given the Roberts Court’s outright hostility toward workers’ rights, especially the rights of women workers, there’s little reason to think the results would improve.