(CN) — Attorneys sparred before a three-judge panel at the Fifth Circuit on Thursday in an appeal from the state of Nevada after its bid to intervene in a case involving insurance coverage for contraception was blocked by a Texas judge.
Nevada Deputy Solicitor General Craig Newby told the judges at the New Orleans-based appeals court Thursday that the plaintiffs named in the class action didn’t follow proper filing protocols and the case should never have been allowed to go forward in the first place.
Nevada is one of over a dozen states that have defended the Affordable Care Act, better known as Obamacare, in the face of legal attacks from Republican-led states that the last president's administration chose not to defend.
Newby said if it weren’t for Trump administration exemptions and a Supreme Court ruling upholding them, what has become known as the contraceptive mandate portion of the ACA would still be in effect. That provision stipulates employees covered under an insurance plan qualify for contraceptives free of charge regardless of whether their employers object on religious grounds.
U.S. Circuit Judge Leslie Southwick, an appointee of George W. Bush, asked Newby where the public interest lies in the dispute. He replied that it lies in the administrative rulemaking process and in allowing all parties to be heard and represented in the issue.
“It does not lie in allowing third parties to circumvent that interest,” Newby continued, referring to the case as a “collateral attack.”
Jonathan Mitchell represents the plaintiffs who challenged the contraceptive mandate. They are “Christians who believe that life begins at conception, and that all human life is sacred from conception until natural death,” according to their 2018 complaint. They argue insurance coverage for contraceptives “encourages illicit sexual activity outside of marriage and forces other insurance beneficiaries to subsidize it.”
Mitchell told the Fifth Circuit judges that “Nevada has no evidence in the record whatsoever that they have been harmed” by U.S. District Judge Reed O’Connor’s 2019 order denying the state's motion to intervene in the dispute in defense of the ACA.
The plaintiffs' attorney pushed back on Nevada's arguments that providing contraceptives through insurance prevents unwanted pregnancies and lowers the rates of abortion and premature birth as well as the need for public assistance. He said “it’s inconceivable” that an employee barred from getting contraceptives through her employer's insurance because of the Trump-era exemptions to the contraceptive mandate “is going to go on the dole,” arguing she would be earning too much money to qualify for public assistance.
Mitchell also said his clients disagree with Nevada’s assertion that not providing insurance coverage for contraceptives will cause women to become pregnant.
Newby said during rebuttal that if the federal government had remained a party in the appeal, then the lower court’s denial of its motion to intervene would have “obviously been vacated.” But he noted the federal government is not a party to the case because the Trump administration did not want to defend the contraception mandate, leaving that job up to Democrat-led states.
U.S. Circuit Judge Patrick E. Higginbotham, an appointee of Ronald Reagan, observed that the “federal government has changed its position with embarrassing frequency” between recent administrations.
“But we are where we are,” Higginbotham said. “What are your rights to be here?”
“If Nevada had been allowed to intervene, we would have been a party to this case, pursuing those interests,” Newby said.
“What relief do you seek?” Higginbotham asked.
Newby said Nevada wants to vacate the lower court decision that it cannot intervene in the class action. He said the state has been harmed by its inability to participate in the normal administrative rulemaking process.
Southwick and Higginbotham were joined on the panel by U.S. Circuit Judge Kurt Engelhardt, an appointee of Donald Trump. The judges did not indicate how or when they will rule on the matter.
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