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Preliminary Injunctions and Hobby Lobby

I’ve just posted on SSRN a version of my amicus brief, “Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits: An Amicus Brief for Hobby Lobby v. Sebelius.” The analysis is about preliminary injunctions; I don’t say anything on the merits of Obamacare or religious freedom and corporations. I might post separately about that today too. Here’s the abstract:

Various corporations, profit and nonprofit, have sued to be exempted from abortion-related mandates of Obamacare because of religious objections. They have also asked for preliminary injunctions against government enforcement of the offending provisions until the merits are decided. This paper is an amicus brief on the preliminary injunction issue for one of those cases, Hobby Lobby v. Sebelius. I argue for 4 points.

1. The government’s loss from a wrong injunction are limited by the dollar expenditure it would require for the government to pay for the disputed contraceptives for Hobby Lobby’s employees until the merits are decided, and it could recover even that from Hobby Lobby later.

2. In determining Hobby Lobby’s loss from a wrong injunction, one thing the court should look at is how the churches of its owners, the Green family, treat members who commit acts forbidden by the church’s doctrines.

3. In determining Hobby Lobby’s loss from a wrong injunction, the court should keep in mind that Sebelius is protected by qualified immunity from liability for a new kind of legal dispute, and so even if Hobby Lobby’s losses can be quantified, they are irreparable.

4. The court should use the Posner sliding-scale rule for balancing the equities.

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