WASHINGTON — CVS announced today that it will withdraw CVS v. Doe from the Supreme Court docket. This is a major victory for the disability rights community, which has been pressuring the company to end its legal effort to roll back Section 504 of the Rehabilitation Act.

The case involves a CVS-managed prescription drug plan that requires people who need “specialty medications” to receive them by mail, instead of at their local pharmacy. Five individuals living with HIV sued over the requirement, asking to be able to ‘opt out’ of the program, and arguing that it effectively prevents them from receiving necessary care for their condition and represents discrimination based on their disability. 

Attorneys for CVS took the position that Section 504 of the Rehabilitation Act does not protect against claims of “disparate impact,” or when neutral policies or practices have disproportionate impacts on a protected class, in this case people with disabilities. The position was at odds with CVS’s history of supporting the disability rights community and would have been devastating to decades of progress on disability rights.

CVS has agreed to work with disability groups to develop policy solutions to ensure equitable access to health care, including for people with disabilities.  

Susan Mizner, director of the American Civil Liberties Union’s Disability Rights Program, had the following response to the settlement:

“We are grateful to the leaders at CVS who listened to the disability community and agreed to reverse course. There are always better solutions to a problem than to undercut the foundation of disability rights laws.” 

Amy Robertson, of the law firm of Fox & Robertson, one of the attorneys collaborating on a disability community amicus brief to the Supreme Court, stated:

“This case and the dialog with CVS underscore the need for a better understanding in the legal community of how disability discrimination actually works. As Justice Thurgood Marshall said over 35 years ago, discrimination against disabled people is ‘most often the product, not of invidious animus, but rather of thoughtlessness and indifference.’ The law must continue to protect against unintended but exclusionary measures.”

Disability rights groups, including the ACLU and the Civil Rights Education and Enforcement Center, filed friend-of-the-court briefs late last month urging the Supreme Court to uphold disability rights and arguing that decades of disability rights work would be decimated if Section 504 were interpreted to require intent to discriminate. 

 

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