Equitable access to healthcare, especially medication, is a right all Americans should enjoy. Those living with diseases such as HIV, in particular, deserve the same protection afforded to those unafflicted. The United States Supreme Court is currently preparing to hear a case regarding this kind of protection in CVS Pharmacy Inc. v. Doe. The respondents, referred to as John Doe One et al, are five individuals with HIV who were previously able to fill their prescriptions at “community” pharmacies using an insurance plan provided by their employers. CVS changed this policy, making it so the individuals could only receive this medication through mail or drop shipments. When the individuals requested to opt out of this program, they were denied. The respondents believe CVS’s policy goes against the Affordable Care Act, specifically the anti-discrimination clauses.
The Patient Protection and Affordable Care Act provides for comprehensive protection from discrimination. Section 1557 of the Act states that “an individual shall not be excluded from participation in, be denied the benefits of, or be subjected to discrimination on the grounds prohibited under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. (race, color, national origin), Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq. (sex), the Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq. (age), or Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (disability), under any health program or activity.” The last section, 504 of the Rehabilitation Act of 1973, is specifically what the respondents are accusing CVS of violating.
CVS is arguing that Section 504 only offers protection against intentionally discriminatory practices. The question posed to the Court refers to disparate impact, which can be described as “unintentional discrimination.” Policies that result in disparate impact are not designed to intentionally hurt someone in a protected group; instead, they often disregard the needs of those in said group. Disparate impact is a major part of the debate on discriminatory practices in private businesses. In an environment with no discrimination, individuals are treated equally across the board. No one specific group is treated differently, even if that treatment is beneficial to the specific group. Without the disparate impact from this case, John Doe One et al would be able to pick up their HIV specialty prescriptions the same way they could pick up an antibiotic for strep throat, for example. By implementing this alternate process for obtaining medication, CVS has discriminated against those living with HIV.
Just under 60,000 Georgians currently live with HIV or AIDS, according to figures from 2019. If the policy used by CVS is permitted to restrict HIV patients from equal access to picking up prescriptions, why would that policy not be allowed to extend to other long-term diseases that require routine medication use? For example, around one million people in Georgia are afflicted by diabetes. CVS limits the medication disbursement to specific pharmacies through mail or drop shipments only. In rural communities around Georgia, this will severely limit people’s access to their medication. Additionally, being able to use local pharmacies to pick up their prescriptions allows individuals to develop relationships with specific pharmacists who can monitor their medical history and help make changes as necessary. Mail-in medication mandated by CVS prevents these sorts of relationships. The implications of CVS v. Doe have the potential to harm millions of Americans through disparate impacts.