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“Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits II: An Amicus Brief for Mersino v. Sebelius”

August 18th, 2013 Leave a comment Go to comments

I’ve just filed and SSRN’d another preliminary injunction amicus brief, this one for the 6th Circuit in Cincinnati: “Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits II: An Amicus Brief for Mersino v. Sebelius”. The abstract is below.

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, Mersino 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 Mersino’s employees until the merits are decided, and it could recover even that from Mersino later.
2. In determining Mersino’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 Mersino’s losses can be quantified, they are irreparable.
3. Other Sixth Circuit opinions involving preliminary injunctions have overlooked the fact that the 2002 6th Circuit Overstreet test has been superseded by the 2007 Supreme Court Winter test, and that the 2009 Supreme Court Nken test is for stays, in explicit contrast to preliminary injunctions.
4. The court should use the Posner sliding-scale rule for balancing the equities. This makes a case like the present one far easier to decide.

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