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

21 Pages Posted: 18 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: August 17, 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, 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opinions involving preliminary injunctions have overlooked the fact that the 2002 6th Circuit Overstreet test has been superseded by the 2007 Supreme Court Winter test, and that the 2009 Supreme Court Nken test is for stays, in explicit contrast to preliminary injunctions.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.

Suggested Citation

Rasmusen, Eric Bennett, Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits II: An Amicus Brief for Mersino v. Sebelius (August 17, 2013). Available at SSRN: https://ssrn.com/abstract=2311834 or http://dx.doi.org/10.2139/ssrn.2311834

Eric Bennett Rasmusen (Contact Author)

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

Enter your address line 1 here
Enter your address line 2 here
Bloomington, IN Enter your state here 47405
United States
812-855-9219 (Phone)
812-855-3354 (Fax)

HOME PAGE: http://rasmusen.org

Register to save articles to
your library

Register

Paper statistics

Downloads
24
Abstract Views
997
PlumX Metrics