Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits: An Amicus Brief for Hobby Lobby v Sebelius

9 Pages Posted: 1 Aug 2013

See all articles by Eric Bennett Rasmusen

Eric Bennett Rasmusen

Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

Date Written: July 31, 2013

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.

Keywords: Hobby Lobby, preliminary injunction, balancing the equities, irreparable harm, Obamacare, free exercise clause

JEL Classification: K23, K41

Suggested Citation

Rasmusen, Eric Bennett, Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits: An Amicus Brief for Hobby Lobby v Sebelius (July 31, 2013). Available at SSRN: https://ssrn.com/abstract=2304396 or http://dx.doi.org/10.2139/ssrn.2304396

Eric Bennett Rasmusen (Contact Author)

Indiana University - Kelley School of Business - Department of Business Economics & Public Policy ( email )

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