Health industry workers increasingly are asserting religious rights to argue they shouldn’t be forced to help women obtain a range of reproductive medication.
A spate of lawsuits against
In one recent suit, nurse practitioner J. Robyn Strader sued CVS for firing her for refusing to provide customers birth control. Key to the lawsuit, attorneys say, is Strader’s use of the term “birth control” in reference to either contraceptives or abortion-inducing drugs, known as abortifacients.
By classifying contraceptives as abortifacients, they “come under the purview of religious and moral objections,” said Rachel Rebouché, dean of Temple University’s Beasley School of Law.
That perception of “definitional blurriness,” Rebouché said, “has caused numerous cases and litigation.”
Strader’s lawsuit is one of several against CVS by former employees that associate the use of hormonal contraceptives with abortions, after the Supreme Court, in Dobbs v. Jackson Women’s Health Org., struck down Roe. It comes as states and activists are pushing to restrict access to abortion to the point of conception.
“That’s what’s at stake here—trying to have personhood conferred on pregnancies from the earliest stages,” Rebouché said.
Central to the debate is whether contraceptive drugs should be classified as abortifacients. Some groups believe life begins at fertilization. Common birth control methods, they argue, qualify as abortifacients because they prevent the implantation of a fertilized egg.
In the wake of Dobbs, the question of whether a drug can be deemed an abortifacient is “really important,” said Michael Ulrich, an assistant professor of health law, ethics, and human rights at Boston University.
The high court also has moved to bolster religious rights in recent years.
Ulrich said Dobbs should be weighed alongside the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. , where the court ruled that for-profit companies can decline to offer employees health insurance coverage for contraceptives based on religious objections.
While states have erected individual restrictions after Dobbs, legal experts say fetal personhood—or the idea that life begins at fertilization—could be a major battleground on future abortion fights.
“The through line of Hobby Lobby into Dobbs, into these post-Dobbs cases, and again connecting to these other religious liberty cases that are popping up, is this question of how far do beliefs go?” Ulrich said.
‘Setting the Stage’
While Strader’s lawsuit is “not taking on medication abortion at this point, it is setting the stage for arguments that could be made as easily for medication abortion,” Rebouché said. It also “at a moment where medication abortion will be available through CVS,” she said.
In January, the Food and Drug Administration announced pharmacies can get certified to dispense the abortion drug mifepristone. CVS and Walgreens plan to get certified to dispense abortion drugs.
Strader’s lawsuit “is arguing all birth control is abortifacient,” Rebouché said. In previous lawsuits, that argument largely focused on Plan B emergency contraceptive drugs. In the CVS case, however, that argument accounts for “all hormonal pills,” she said.
But it’s another FDA action—the agency’s changing the label to Plan B contraception to “make very clear” the drug isn’t an abortifacient—that Shaina Goodman, director for reproductive health and rights at the National Partnership for Women & Families, said points to a renewed focus on contraceptives in the debate between religious and reproductive rights.
“Folks on the anti-abortion side are seeing the writing on the wall and what is coming,” she said.
‘No Stone Unturned’
Religious exemptions for certain health services “broadened” under the Trump presidency, Goodman said.
The Trump administration issued a rule allowing the Department of Health and Human Services to strip funds from health-care facilities taking actions against workers who cite moral or religious objections to providing abortion services. Proponents claimed it gave teeth to health-care workers’ rights, while critics claimed it made it easier to restrict abortion access .
In 2022, however, the Biden administration proposed changes to the rule that conservatives say will force health providers to provide services to which they object on religious grounds.
“Ever since the Dobbs decision, the Biden administration has left no stone unturned to try and find a way to go around it, regardless of whether they have the legal authority to do so,” said Roger Severino, former head of Donald Trump’s HHS civil rights office. Now with the Ethics and Public Policy Center, Severino oversaw implementation of the Trump health worker religious objection rule.
Strader’s lawsuit comes amid “ a very coordinated strategy by the anti-abortion movement,” Goodman said. And she expects more like it, “not just in reproductive health care but health care writ large.”
“This is a very deliberate strategy to test the boundaries of how far they can go,” Goodman said.
CVS Cases
In 2021, Strader alleged, CVS revoked religious accommodations for employees.
“CVS fired Robyn when she sought the extension of a religious accommodation from prescribing medication she believes could end the development or life of an unborn child—an accommodation CVS had granted for the previous six years,” said Stephanie Taub, senior counsel at First Liberty Institute, a nonprofit religious legal group representing Strader.
A CVS spokesperson said the company has “a well-defined process in place for employees to request and be granted a reasonable accommodation due to their religious beliefs, which in some cases can be an exemption from performing certain job functions. It is not possible, however, to grant an accommodation that exempts an employee from performing the essential functions of their job.”
In a similar case, nurse practitioner Paige Casey sued CVS and its MinuteClinic division for firing her for refusing to provide contraceptives. The company, she claimed, failed to respect her belief that life begins at conception, and that she therefore couldn’t prescribe abortion drugs, a category she claims include hormonal contraceptives. The Alliance Defending Freedom, a Christian legal advocacy group, is representing Casey in her lawsuit.
Suzanne Schuler is also suing CVS for firing her, claiming her “faith prohibits her from providing, prescribing, or facilitating the use of any drug, device, or surgical procedure that can cause abortion—including drugs like certain hormonal contraceptives, Plan B, and Ella.”
“By firing several employees like Robyn because of their religious beliefs, CVS is sending a message that religious health-care workers are not welcome and need not apply,” Taub said.
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