Court of Appeals hears case about refusal to dispense morning-after pill

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Lawyers who represented a woman denied Plan B contraceptive by a pharmacist were recently back in court. On Dec. 21, 2023, the Minnesota Court of Appeals heard oral argument in the case of Andrea Anderson v. Aitkin Pharmacy Services, LLC.

In January 2019, Andrea Anderson, who is a mother of five, realized that her regular contraception failed. Not planning to have any more children, Anderson contacted her doctor the next day to review her options. Her gynecologist prescribed ella, which is marketed as the most effective morning-after pill.

Anderson had her medications filled at the Thrifty White pharmacy, due to its proximity to her home. A resident of McGregor, Minnesota — which has a population of a few hundred people and is more than 100 miles from Minneapolis — Anderson lacked options in where to get her medication.

Although Thrifty White told Anderson she could pick up her medication the next day, and it would be covered by her health insurance, Anderson found out that she was unable to get it when she arrived for pickup. Anderson first assumed that she would be unable to take it because of a negative interaction with another medicine she took, but she subsequently learned she would not get her medication because the pharmacist had a personal objection to dispensing emergency birth control.

The pharmacist told Anderson that a different pharmacist may be able to dispense the medicine the next day, although he told Anderson that impending winter weather might prevent the pharmacist from being able to make it to work. He also let Anderson know that Shopko, the next closest pharmacy, would also not be worth trying. The pharmacist did not give Anderson any information about where she may be able to fill her prescription.

Anderson then tried to get the medication filled at CVS, located in Aitkin, Minnesota, which was roughly a 20-mile drive. However, that pharmacist told Anderson that she could not fill the prescription due to not being able to find a wholesaler. She said she called Walgreens in Brainerd — 50 miles southwest of McGregor — but they also were unable to fill the prescription.

Skeptical about reasons for the inability to get the prescription filled, Anderson called Walgreens. She then learned that, despite what the CVS pharmacist reported, Walgreens actually could fill her prescription. Facing near-blizzard conditions, Anderson was presented with the choice of driving 100 miles in severe winter weather or risking an unwanted pregnancy. Ultimately, Anderson made the three-hour round trip with her 2-year-old son.

Gender Justice, along with Lockridge Grindal Nauen PLLP, filed a lawsuit in 2022 on behalf of Anderson. The lawsuit alleged that the pharmacist discriminated against Anderson on the basis of sex since emergency contraceptives can only be used by people who can become pregnant. Plaintiff argued that the denial of dispensing the medication — which she asserted arose out of her pregnancy-related health care needs — violated the Minnesota Human Rights Act.

“No one in Minnesota should have to worry that their pharmacist will withhold their prescribed medication because of his personal beliefs. It is not only dangerous, it is illegal,” said Jess Braverman, senior staff attorney for Gender Justice.

An Aitkin County jury found in August 2022 that there was no discrimination under the law. However, the jury did find that Anderson suffered emotional harm and awarded damages of $25,000. The pharmacist, George Badeaux, will not have to pay this sum unless sex discrimination is found in the appeal to the Minnesota Court of Appeals.

“The policy on its face, even viewed in the light most favorable to Thrifty White … is that Mr. Badeaux could continue to refuse to dispense emergency contraception to women if he was working,” argued Jess Braverman. “Emergency contraception is time-sensitive. A woman with an EC prescription could not get her medication even if it is right there in the store, and she is the only one subject to that policy.”

“She was singled out and had to drive 100 miles round trip,” Braverman added.

“Mr. Badeaux was not focused on him or Ms. Anderson primarily, but on a third party, and that is the life that occurs when an egg is fertilized,” said Rory Gray, who represented the pharmacist. “Mr. Badeaux had to have a discriminatory motive. The jury found that he did not.”

A ruling is expected by the end of March.