Case: Silver State Hope Fund v. State of Nevada

This is a case about whether Nevada’s ban on state Medicaid abortion coverage violated the state's Equal Rights Amendment (ERA). In the aftermath of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, Nevada voters adopted an ERA to the state’s constitution in November 2022 that ensured equal rights for all in the state “regardless of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin.” However, under Nevada’s Medicaid program, state regulations expressly excluded abortion from Medicaid coverage except in extremely limited circumstances: for abortion “to save the life of the mother” or for a pregnancy “resulting from a sexual assault (rape) or incest.” The state’s Medicaid program is administered by the Division of Health Care Financing and Policy (the “Division”) within the Nevada Department of Health and Human Services.

Silver State Hope Fund (“Silver State”) is a Nevada nonprofit that offers financial assistance to help support individuals seeking abortion care.  Represented by ACLU Nevada, on August 28, 2023, Silver State submitted a petition for a writ of mandamus in the Eighth Judicial District Court in Clark County, Nevada, under Article IV § 6 of the Nevada Constitution. The petition sought an order directing the Division to remove the exclusion of abortion from Medicaid coverage and declare that abortion care is eligible for reimbursement under the Nevada Medicaid program. In addition to requesting a writ, Silver State also sought the payment of attorneys’ fees. The case was assigned to Judge Mark Denton. 

In its petition and opening brief, Silver State alleged that the abortion coverage ban discriminated on the basis of sex, in violation of the ERA, in four distinct ways. First, Silver State argued the coverage ban was facially discriminatory because it provided less comprehensive coverage on the basis of the insured individual’s capacity for pregnancy, a sex-linked characteristic. Second, the coverage ban discriminated on the basis of sex because it disproportionately burdened women. Third, the coverage ban discriminated on the basis of sex because it singled out people who were or could become pregnant for coercive regulation, which denied these individuals the ability to control their reproductive futures. And fourth, the coverage ban discriminated on the basis of sex because it was based on, and perpetuated, invidious sex-based stereotypes, such as the stereotype that women are, by nature, destined to become mothers.

The Nevada Department of Health and Human Services filed its answering brief on November 2, 2023. Shortly after, on November 7, 2023, Judge Denton recused himself from the case. In this order, Judge Denton stated: “the Court [recuses] from further proceedings in this case given its religious affiliation and expressed devotion of family members pertaining to the underlying subject, as it deems that its impartiality might reasonably be questioned, and [orders] that it be promptly reassigned at random.” The case was reassigned to Judge Erika Ballou.

On December 22, 2023, a group of seven Republican Nevada legislators, Thaddeus J. Yurek III, Gregory Hafen II, Gregory Koenig, Alexis Hansen, Ira Hansen, Bert Gurr, and Melissa Hardy, filed a Motion to Intervene in the case. Silver State opposed this motion. Judge Ballou denied the motion on February 14, 2024. In her order, Judge Ballou noted that “because the Legislators are acting as an independent minority of seven, as opposed to the entire legislative body, they do not have an unconditional right to intervene in this action.” Specifically, while the Nevada Legislature as a whole may intervene in a case under Nevada law when deemed necessary to protect the official interests of the Legislature, that statutory ability is not extended to individual legislators.

On March 19, 2024, Judge Ballou granted Silver State’s petition. Judge Ballou did not include an opinion explaining her decision. However, she stated from the bench that she planned to issue a written order at a later date directing the state Department of Health and Human Services to grant Medicaid coverage for all abortions.

The Nevada attorney general’s office has yet to appeal the ruling.