Minnesota appellate court revives woman’s fight for emergency contraception

ST. PAUL, Minn. (CN) —The Minnesota Court of Appeals has revived a rural Minnesota woman’s suit in which she claims a local pharmacist discriminated against her by refusing to sell her emergency contraceptives.

In an order issued Monday by Judge Jeanne Cochran, the court found that a local pharmacy’s failure to fill plaintiff Andrea Anderson’s prescription for ella, an emergency-contraceptive pill with a slightly longer window of efficacy than Plan B, constituted business discrimination under a state human-rights law and that Anderson did not need to show a “material disadvantage” or “tangible change in conditions” to succeed on a public-accommodations claim under the same law.

Anderson’s contraception failed early in 2019, leading her to seek a prescription for ella at her local pharmacy run by Aitkin Pharmacy Services under the brand name Thrifty White Pharmacy. When the prescription order came in, she received a call from pharmacist-in-charge George Badeaux.  

Badeaux had an established pattern of refusing to dispense emergency contraception, which Aitkin Pharmacy’s owner first became aware of in 2015 when Badeaux refused to dispense Plan B to a woman seeking it. The owner created a plan with Badeaux after that incident under which another pharmacist would come in to fill prescriptions for contraception on either the same day or the next day, or the pharmacy would transfer the prescription elsewhere.

Badeaux informed Anderson that he wasn’t willing to participate in dispensing the prescription, that another pharmacist was scheduled to work on the day the pharmacy expected to receive her prescription, and that a coming storm might prevent the other pharmacist from coming in. He said that she could get the prescription filled at a different pharmacy in Aitkin, a little over 20 miles away, but that she might “run into trouble” there.

Anderson became angry and hung up on Badeaux, who kept the prescription order in place. Anderson then called around to other pharmacies, eventually finding a Walgreens in Brainerd, over 50 miles away, that was willing and able to fill the prescription. Anderson transferred the prescription, Badeaux participated in the transfer, and Anderson drove to Brainerd the following day to obtain her prescription. Anderson then filed suit, claiming sex discrimination under the Minnesota Human Rights Act. Her initial complaint also named a number of entities involved in the management of her local CVS, which settled with Anderson before trial.

Trial did not go favorably for Anderson. A jury found that she had failed to prove that the pharmacy had denied her full and equal enjoyment of its services because of her sex, that either the pharmacy or Badeaux had intentionally refused to do business with her because of her sex or that Badeaux intentionally aided or abetted the pharmacy’s discrimination. Anderson brought posttrial motions seeking judgment as a matter of law or a new trial on her claims, arguing the verdict was unsupported by the evidence and that the court erred in instructing the jury and in its evidentiary rulings. The judge denied those motions, leading to an appeal and Monday’s order.

Cochran’s order breathed new life into portions of Anderson’s case, finding that Badeaux’s refusal to dispense a valid prescription for emergency contraception was business discrimination under the human rights act and that the lower court had erred by instructing jurors that Anderson needed to show a “material disadvantage” or “tangible change in conditions” to prove that she’d suffered public-accommodations discrimination at the pharmacy’s hands. Anderson’s motion for judgment as a matter of law, Cochran found, should have been granted as to the business-discrimination claim, and she was entitled to a new trial on the public-accommodations claim and its accompanying aiding-and-abetting claim.

“It is unclear on what basis the jury concluded that Anderson was entitled to damages against Badeaux and whether the jury would have evaluated the public-accommodations claim against Aitkin Pharmacy differently if the jury had received an agency instruction or accurate instructions related to ‘full and equal enjoyment,” Cochran wrote in her finding as to the public-accommodations claim.

“Aitkin Pharmacy’s liability to Anderson is not premised solely on vicarious liability for Badeaux’s actions but rather on its independent conduct — maintaining an allegedly discriminatory plan for dispensing emergency contraception — as well as Badeaux’s conduct,” Cochran continued, addressing the aiding-and-abetting claim.

Badeaux's attorney, Rory Gray of the Georgia-based anti-abortion group Alliance Defending Freedom, excoriated the court's decision. "George politely informed the customer that he couldn't dispense the drugs due to his personal beliefs," Gray said. "He offered to help her get the drugs from another pharmacist, which she would have been able to do at the same pharmacy.... The court failed to uphold George's constitutionally protected freedom to act consistent with his beliefs while at work."

Anderson’s attorneys at Minnesota-based gender advocacy firm Gender Justice could not be reached for comment. Attorneys for Aitkin Pharmacy had not returned requests for comment by early Monday afternoon.

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