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Nonprofits can't deny contraceptive coverage for employees, 9th Circuit says in limited ruling

A federal appeals court in a 2-1 decision Thursday upheld an injunction preventing the Trump administration from broadly excusing nonprofits and others from having to provide contraceptive coverage to workers, but limited the order to California and four other states.

The Trump administration, responding to myriad lawsuits challenging the contraceptive mandate in the Affordable Care Act, issued two rules in 2017 that expanded an exemption to nonprofit groups that have religious objections to contraception and to companies that are not publicly traded that have moral objections.

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California, Maryland, Delaware, New York and Virginia sued to block the rules, and a federal judge in San Francisco last year issued a nationwide preliminary injunction against them.

In its ruling Thursday, the U.S. 9th Circuit Court of Appeals upheld the injunction, but said it was overly broad and should apply only to the states that sued.

“It is reasonably probable that women in the plaintiff states will lose some or all employer-sponsored contraceptive coverage,” wrote Judge J. Clifford Wallace, a President Nixon appointee, who was joined by Judge Susan P. Graber, an appointee of President Clinton.

As a result, those states will end up footing the bill for those women, the court said.

But the majority also said the district judge should not have issued a nationwide injunction because there was too little evidence to show that other states would be harmed.

“While the record before the district court was voluminous on the harm to the plaintiffs, it was not developed as to the economic impact on other states,” the court said.

Andrew Kleinfeld, appointed by President George H.W. Bush, dissented. He said the states that sued lacked standing.

The financial harm they would suffer would be “self-inflicted because it arises solely from their legislative decisions” to ensure women had access to contraceptive care, Kleinfeld said.

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