Obamacare Birth Control Rule Opponents Face Nevada’s Defense

Religious objectors to an Obamacare provision that requires health plans to pay in full for members’ contraceptive drugs and related services face Nevada’s defense of the mandate after the Fifth Circuit denied their request for a rehearing.

The U.S. Circuit Court of Appeals for the Fifth Circuit also denied en banc review of the case, which involved the state’s attempt to defend the Affordable Care Act’s prevention mandate, but the vote was very close — eight judges voted in favor of one Hearing and nine judges voted against.

Those who voted for en banc review – Chief Justice Priscilla Richman and Justices Edith H. Jones, Jerry E. Smith, Jennifer Walker Elrod, Catharina Haynes, James C. Ho, Stuart Kyle Duncan and Andrew S. Oldham – were all Republican-appointed presidents. Those who voted against the review were a mix of Republican and Democratic appointments — Justices Carl E. Stewart, James L. Dennis, Leslie H. Southwick, James E. Graves Jr., Stephen A. Higginson, Gregg J. Costa , Don R Willett , Kurt D Engelhardt and Cory T Wilson.

A federal court had blocked enforcement of the Affordable Care Act’s contraception statute against a nationwide class of dissenting employers, saying it had materially interfered with their religious practice in violation of the Religious Freedom Information Act.

But there was no party defending the mandate at the time, despite Nevada’s request to join the lawsuit. The lower court denied the state’s request after entering the injunction.

A Fifth Circuit panel said in 2021 that Nevada’s application should have been granted. The state has a significant interest in arguing that employers within its borders should be bound by the requirement and should have had an opportunity to defend itself against the lawsuit, he said. The court reversed the injunction and referred the case back to the lower court.

Employers asked for a rerun, arguing that Nevada was not suffering in reputation since the protections afforded to conflicting employers did no harm to the state. In addition, the Trump administration’s rules are now in effect, granting sweeping religious exceptions to the contraceptive mandate, depriving Nevada of any “direct, material, legally protectable interest” in the case, they said.

Mitchell Law PLLC and Fillmore Law Firm LLP represent employers. The Nevada Attorney General’s office represents the state.

Case is DeOtte v. Nevada, 5th Cir., No. 19-10754, motion for rehearing denied 8/23/22.

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