Bench Memos

Big Hobby Lobby Victory on HHS Mandate in Tenth Circuit—Part 1

By a vote of 5 to 3, the en banc Tenth Circuit today reversed the district judge’s ruling (which I criticized here) that denied Hobby Lobby’s motion for a preliminary injunction against the HHS mandate that would require it to provide its employees insurance coverage for abortifacients.

The five judges in the majority agree that Hobby Lobby (and Mardel, owned by the same family) had demonstrated a likelihood of success on their claim under the federal Religious Freedom Restoration Act and had satisfied the irreparable-harm prong of the preliminary-injunction standard. Four of the five judges would resolve the remaining two factors (balance of equities and public interest) in Hobby Lobby’s favor, while the fifth would remand the case to the district court for evaluation of those two factors. Because that fifth vote is controlling, the Tenth Circuit is remanding the case to the district court.

The ruling represents a major victory for the straightforward proposition that for-profit corporations have rights under RFRA. (My law-review essay on the general proposition that the HHS mandate violates RFRA is here.)

For those keeping score at home: The majority opinion is authored by Bush 43 appointee Timothy Tymkovich and is joined by three other Republican appointees and an Obama appointee, Robert Bacharach (who is the fifth judge referred to above).

The opinions are over 160 pages. I’ll do a supplemental post when I’ve reviewed them.

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