US Supreme Court case could "rip" disability laws, advocates warn

Michael Roppolo
Fri, November 5, 2021


The Supreme Court will hear a case next month that could have far-reaching effects on disability rights. The question at the heart of the case, CVS Pharmacy, Inc. vs. Doe, is whether claims of unintentional discrimination against people with disabilities are allowed under federal law.

At issue is language in Section 504 of the 1973 Rehabilitation Act — language that is used in two other landmark laws: the Americans with Disabilities Act and the Affordable Care Act, protecting against discrimination for those with preexisting conditions. Section 504 bars "criteria and methods of administration that have the effect of subjecting" disabled people to discrimination on the basis of disability.

The Supreme Court case stems from a lawsuit filed against CVS by multiple people who take prescription drugs for HIV/AIDS and say changes to the company's terms now meant they could not opt out of mail-only delivery or utilize another pharmacy with experience handling their special medication needs.

They argued that, even if unintentionally, the company's policy had a discriminatory effect. The suit was thrown out, with the trial court ruling that the problems they described did not violate federal disability laws.

When they appealed, the 9th Circuit Court of Appeals sided with the unnamed plaintiffs, known as the Does. CVS then appealed to the highest court in the land, saying in court filings the ruling would "upend insurance plans and skyrocket healthcare costs nationwide."

The U.S. Department of Justice has filed a brief supporting the Does.

The Supreme Court justices will hear arguments in the case on December 7.

Advocacy groups are sounding the alarm, with organizations such as the American Civil Liberties Union, the Disability Rights Education & Defense Fund (DREDF), and The Arc of the United States filing briefs in support of the Does.

"A ruling that Section 504 does not reach 'unintentional' discrimination or 'disparate impact' discrimination would rip out a central tenet of our disability rights law in key sectors of our society that are covered only by Section 504," Claudia Center, the legal director at DREDF, told CBS News.

She said the court's ruling would have an impact in many different aspects of American life.

"Starting with the federal government," Center said. "National parks, Veterans Administration programs, Medicare, Social Security Administration benefits, federal student loans, HUD programs — the only disability nondiscrimination law that reaches these federal programs is Section 504."

CVS, which was awarded the Excellency in Disability Inclusion Award from the Department of Labor in 2019, tells CBS News: "We have always and will continue to strongly support essential and foundational legal protections for people with disabilities."

"As a company with a longstanding commitment to the disability community and ensuring that marginalized populations can access affordable health care and medicines in their community, our position should not be misconstrued," the company said in a statement. "This case concerns the ability to provide health care coverage equally to all plan members."

But DREDF notes that businesses already have protections under current law, thanks to a 1985 Supreme Court ruling that created a framework for considering the rights of businesses and people with disabilities.

More than 30 years later, a ruling in this case could upend that framework.

"To state the obvious, we have a very different Court today than in 1985," Center said. "The Court is also much more polarized. … The 1985 opinion was unanimous, which is almost unheard of today."