Contraception Mandate Enjoined by 8th, Again

     ST. LOUIS (CN) – For the second time, the 8th Circuit enjoined a provision of health care reform that requires employers to cover the contraceptive needs of their workers.
     Annex Medical and it owner, Stuart Lind, claimed that the mandate conflicted with the beliefs of Lind, who describes himself as a devout Catholic.
     Though a Minneapolis federal judge refused to issue Annex and Lind an injunction, the 8th Circuit said this decision stemmed from a misunderstanding of its precedent, O’Brien v. U.S. Department of Health and Human Services.
     “After noting that the O’Brien appellants requested the issuance of a preliminary injunction pending appeal, the District Court observed that ‘[i]nstead of granting the injunction, the Eighth Circuit – in a one-sentence divided motions panel opinion – issued a stay pending appeal,'” according to the unsigned opinion. “The District Court concluded that it could not, ‘with a reasonable level of certainty, interpret the stay pending appeal as indicating a likelihood of success on the merits’ in a comparable case.
     “We appreciate the District Court’s uncertainty about the O’Brien order, and we think the meaning should be clarified. Although the O’Brien order referred to a ‘motion for stay pending appeal,’ we interpret the panel’s order as granting the only motion that was pending before the court: a motion for an injunction pending appeal. To grant the pending motion, the O’Brien panel necessarily concluded that the appellants satisfied the prerequisites for an injunction pending appeal, including a sufficient likelihood of success on the merits and irreparable harm. While the O’Brien panel issued the order without discussion, and an unpublished order is not binding precedent, there is a significant interest in uniform treatment of comparable requests for interim relief within this circuit. We therefore conclude, consistent with the O’Brien order, that the appellants’ motion for preliminary injunction pending appeal in this case should be granted.”
     Judges Roger Wollman, James Loken and Steven Colloton issued the decision.
     As with Annex Medical, O’Brien Industrial Holdings and its owner, Frank O’Brien, had failed to get an injunction at the District Court level.

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