DeOtte v. State
| Decision Date | 17 December 2021 |
| Docket Number | No. 19-10754,19-10754 |
| Citation | 20 F.4th 1055 |
| Parties | Richard W. DEOTTE, on behalf of himself and others similarly situated; Yvette DeOtte; John Kelley ; Alison Kelley; Hotze Health & Wellness Center; Braidwood Management, Incorporated, on behalf of itself and others similarly situated, Plaintiffs—Appellees, v. STATE of Nevada, Movant—Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jonathan F. Mitchell, Austin, TX, Charles William Fillmore, Attorney, Hartson Dustin Fillmore, III, Fillmore Law Firm, L.L.P., Fort Worth, TX, for Plaintiffs - Appellees Richard W. DeOtte, Yvette DeOtte, John Kelley, Alison Kelley, and Braidwood Management, Incorporated.
Jonathan F. Mitchell, Austin, TX, Charles William Fillmore, Attorney, Fillmore Law Firm, L.L.P., Fort Worth, TX, for Plaintiff - Appellee Hotze Health & Wellness Center.
Craig A. Newby, Heidi Parry Stern, Office of the Attorney General for the State of Nevada, Las Vegas, NV, for Movant - Appellant.
Elizabeth N. Dewar, Office of Massachusetts Attorney General, Boston, MA, for Amici Curiae State of Massachusetts, State of California, State of Colorado, State of Connecticut, State of Delaware, District of Columbia, State of Hawaii, State of Illinois, State of Maine, State of Maryland, State of Michigan, State of Minnesota, State of New Jersey, State of New Mexico, State of New York, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, and State of Washington.
Catherine Weiss, Esq., Lowenstein Sandler, P.C., Roseland, NJ, for Amici Curiae National Women's Law Center, National Asian Pacific American Women's Forum, National Latina Institute for Reproductive Health, SisterLove, Incorporated, and Advocates for Youth.
Priscilla Joyce Smith, Esq., Yale Law School, Brooklyn, NY, for Amicus Curiae Information Society Project at Yale Law School.
Claudia Hammerman, Jessica Fuhrman, Melina Maria Meneguin Layerenza, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, Crystal Johnson Geise, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., Washington, DC, for Amici Curiae Planned Parenthood Federation of America, National Health Law Program, and National Family Planning & Reproductive Health Association.
Bruce H. Schneider, Stroock & Stroock & Lavan, L.L.P., New York, NY, for Amici Curiae American College of Obstetricians and Gynecologists, American Academy of Pediatrics, American Nurses Association, American Academy of Nursing, and Physicians for Reproductive Health.
Richard Brian Katskee, Legal Director, Americans United for Separation of Church & State, Washington, DC, for Amici Curiae Americans United for Separation of Church and State, Anti-Defamation League, Bend the Arc: A Jewish Partnership for Justice, Central Conference of American Rabbis, Global Justice Institute, Metropolitan Community Churches, Interfaith Alliance Foundation, Men of Reform Judaism, Methodist Federation for Social Action, National Council of Jewish Women, Incorporated, People for the American Way Foundation, Reconstructing Judaism, Reconstructionist Rabbinical Association, Religious Institute, Incorporated, Truah, Union for Reform Judaism, and Women of Reform Judaism.
Susan Pearl Greenberg, Attorney, Office of the County Counsel for the County of Santa Clara, San Jose, CA, for Amici Curiae City of Oakland, County of Santa Clara, Alameda County, California, City of Berkeley, California, City of Columbus, Ohio, King County, Washington, City of Los Angeles, California, Shelby County, Tennessee, City of West Hollywood California, City of Albuquerque, New Mexico, City of Chicago Illinois, Cook County, Illinois, City of Seattle, Washington, City of Madison, Wisconsin, and City of Stockton, California.
Jamie A. Levitt, Esq., Morrison & Foerster, L.L.P., New York, NY, for Amici Curiae American Federation of State, County and Municipal Employees, Service Employees International Union, Girls Incorporated, National Association of Social Workers, If/When/How: Lawyering for Reproductive Justice, California Women Lawyers, Women's Bar Association of the District of Columbia, Women Lawyers' Association of Los Angeles, Women Lawyers On Guard, Incorporated, Georgia Association for Women Lawyers, and Women's Bar Association of the State of New York.
Before Higginbotham, Southwick, and Engelhardt, Circuit Judges.
Leslie H. Southwick, Circuit Judge This case involves a dispute about the effect of provisions in the Religious Freedom and Restoration Act on the contraceptive mandate found in the Affordable Care Act. The case became moot with issuance of the Supreme Court's decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania , ––– U.S. ––––, 140 S. Ct. 2367, 207 L.Ed.2d 819 (2020). The principal remaining issue is whether to leave in place the injunction that had been issued by the district court. We VACATE the judgment below and REMAND with instructions to dismiss as moot.
We begin with an abbreviated history of the Patient Protection and Affordable Care Act (the "ACA") and its contraceptive mandate, then explain the background of this case.
The ACA requires covered employers to provide women with "preventive care and screenings" without cost-sharing requirements "as provided for in comprehensive guidelines supported by the Health Resources and Services Administration" ("HRSA"), an agency of the Department of Health and Human Services ("HHS"). 42 U.S.C. § 300gg-13(a)(4). Shortly after passage, the HHS, the Department of the Treasury, and the Department of Labor (together, "the Departments") began promulgating rules under Section 300gg-13(a)(4). Little Sisters , 140 S. Ct. at 2374.
In 2011, the Departments adopted rules including the contraceptive mandate, which required health plans to include coverage for all contraceptive methods approved by the Food and Drug Administration. See 77 Fed. Reg. 8725 (Feb. 15, 2012). The rules created exemptions from the contraceptive mandate for religious employers. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011) (). This exemption was "narrow[ly] focus[ed] on churches ... [and] is known as the church exemption." Little Sisters , 140 S. Ct. at 2374. In 2013, the Departments promulgated another final rule that created an accommodation process for religious nonprofits who did not qualify for the church exemption. 78 Fed. Reg. 39,870, 39,873 –75 (July 2, 2013) (). The accommodation was different from the exemption: under the accommodation, qualifying nonprofits were required to provide a self-certification form to the health insurer, which would exclude contraceptive coverage from the plan and provide those services to the employees separately. Id. at 39,875, 39,878.
Those rules were challenged in courts. In 2014, the Supreme Court held that the contraceptive mandate violated the Religious Freedom and Restoration Act ("RFRA") as applied to closely held corporations with religious objections, and the religious accommodation must apply to them as well as religious nonprofits. Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 691–93, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). Assuming without deciding that free access to contraceptives was a compelling government interest, the Court held that extending the accommodation to closely held corporations was a less restrictive means of achieving it. Id. at 691–92, 134 S.Ct. 2751. In response, the rules were changed to allow for-profit corporations to use the self-certifying accommodation previously reserved for religious non-profits ("2015 Rules"). 80 Fed. Reg. 41,318, 41,346 (July 14, 2015) ().
In 2015, the Supreme Court granted a writ of certiorari in a case that would have allowed it to determine whether the self-certifying accommodation itself violated RFRA, as many religious groups had argued, because completing the certification caused them to take an action that led to health insurers providing employees with the contraceptives to which they objected. Zubik v. Burwell , 577 U.S. 971, 971, 136 S.Ct. 444, 193 L.Ed.2d 345 (2015). Instead, though, the Supreme Court remanded without deciding the question in light of supplemental briefing by the parties. Zubik v. Burwell , 578 U.S. 403, 407–410, 136 S.Ct. 1557, 194 L.Ed.2d 696 (2016). In that briefing, the petitioners and the government agreed that an alternative approach was possible where employees would receive contraceptive coverage from insurers without affirmative action by employers. Id. at 407–08, 136 S.Ct. 1557. The Court ordered the parties on remand to reach an approach that accommodated religious objections while meeting women's contraceptive needs. Id.
In the wake of Zubik , the Departments in 2016 published a request for information to reach an accommodation that satisfied the needs of both religious objectors and female employees of religious objectors. 81 Fed. Reg. 47741, 47741–45. Ultimately, the Departments could not arrive at a solution, and they did not modify the rules at that time. Id. In 2017, the Departments tried again to satisfy Zubik by modifying the rules related to the contraceptive mandate. In relevant part, the Departments promulgated interim final rules ("IFRs") that broadened the exemption to include for-profit and publicly traded entities who had religious objections to contraceptives, without having to use the self-certifying accommodation ("2017 Rules"). 82 Fed. Reg. 47,792, 47,835 (Oct. 13, 2017) (). The 2017 Rules also gave the individuals the option to obtain insurance that excluded contraception coverage so that individuals would not have to choose between policies that included contraceptive...
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