Bloomberg Law
Aug. 24, 2022, 4:11 PM

Obamacare Birth Control Rule Opponents to Face Nevada’s Defense

Mary Anne Pazanowski
Mary Anne Pazanowski
Legal Reporter

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

The US Court of Appeals for the Fifth Circuit also denied en banc review of the case involving the state’s attempt to defend the Affordable Care Act’s contraceptive mandate, but the vote was very close—with eight judges voting in favor of hearing it and nine judges voting against.

Those voting for en banc review—Chief Judge Priscilla Richman and Judges Edith H. Jones, Jerry E. Smith, Jennifer Walker Elrod, Catharina Haynes, James C. Ho, Stuart Kyle Duncan, and Andrew S. Oldham—were all appointed by Republican presidents. Those voting against review were a mixture of Republican and Democratic appointees—Judges 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 trial court had blocked the enforcement of the Affordable Care Act’s contraceptive mandate against a nationwide class of objecting employers, saying it substantially interfered with their religious exercise 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 to do so. The lower court denied the state’s motion after entering the injunction.

A Fifth Circuit panel said in 2021 that Nevada’s motion should have been granted. The state had a substantial interest in arguing that employers within its borders should be held to the requirement, and should have been allowed to defend the lawsuit, it said. The court vacated the injunction and sent the case back to the lower court.

The employers asked for a redo, arguing that Nevada lacked standing because the protections conferred on the objecting employers caused no injury to the state. Additionally, Trump administration rules granting broad religious exemptions to the contraceptive mandate are now in effect, thereby stripping Nevada of any “direct, substantial, legally protectable interest” in the case, they said.

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

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

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Brian Flood at

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