Sotomayor rejects Hobby Lobby request for injunction on HHS mandate

The fight against the HHS contraception mandate and to protect the freedom of religious expression reached the Supreme Court yesterday … briefly, anyway.  Justice Sonia Sotomayor rejected an emergency request for an injunction to prevent HHS from enforcing the contraception mandate on Hobby Lobby’s Catholic owners, but even Sotomayor acknowledged that they may win on the merits when the full appeal is heard:

The Supreme Court on Wednesday refused to block the Obama administration’s contraception mandate from taking effect.

Justice Sonia Sotomayor rejected a request for an emergency injunction that would have shielded employers from the mandate.

The request was filed by Hobby Lobby, an arts-and-crafts chain. The company’s Catholic owners say the contraception mandate violates their religious freedom.

Hobby Lobby might eventually win on that point, Sotomayor said, but the company didn’t meet the standard for an injunction blocking the mandate from taking effect.

Hobby Lobby and the mandate’s opponents were hoping to use this case to get the Supreme Court to block overall implementation of the mandate, which takes force next Tuesday.  In order to do that, though, they have to show that (a) the plaintiffs have a good chance of winning on the merits of their First Amendment claims, and (b) the plaintiffs will suffer irreparable harm without a temporary injunction.  It was on the second point that Sotomayor refused the case, at least for the moment:

“While the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines, they cannot show that an injunction is necessary or appropriate to aid our jurisdiction,” Sotomayor wrote in a short opinion rejecting Hobby Lobby’s request.

Sotomayor got this case because she is assigned to the 10th Circuit, where Hobby Lobby lost an appeal on the same grounds last week.  It’s hard to argue with the harm involved — defiance will cost the chain $1.3 million a day in fines.  However, HHS may not collect it immediately, even though Hobby Lobby will have to shelter the cash immediately, which will damage their ability to do business.

Expect Hobby Lobby to keep pursuing the case, and keep an eye out for emergency requests from other appellate circuits.  If one lands on the desk of Antonin Scalia or Sam Alito, the outcome could be quite different — and we may get an expedited Supreme Court argument out of it, even if it would still be preliminary.