July 30, 2014
Sherlock Holmes, famously, deduced something from the curious incident of the dog that didn’t bark during the night. In Hobby Lobby and Wheaton College, a majority of the United States Supreme Court, in a sense, “barked” at some federal regulations, but didn’t cite them (or bite them). The dissenters did (cite, not bite), making them identifiable, and Thomson Reuters editors selected flags for negative treatments on KeyCite.
In Burwell v. Hobby Lobby Stores, Inc., 2014 WL 2921709, a majority of the Court held that regulations promulgated in connection with the Patient Protection and Affordable Care Act (ACA), requiring employers to provide to employees, without cost sharing, health insurance coverage for contraceptives coverage, violated the Religious Freedom Restoration Act (RFRA), as applied to closely-held for-profit corporations. The owners of those corporations believed that four forms of contraceptives induce abortions.
The majority opinion for the Supreme Court did not give citations for the three relevant regulations, but did cite, as a possibility for a less restrictive means of achieving the government’s asserted interests, a federal regulation providing an accommodation to non-profit religious employers. The three regulations under consideration in Hobby Lobby, cited in the principal minority opinion, received flags on KeyCite. The religious accommodation regulation wasn’t flagged.
Three days later, in Wheaton College v. Burwell, 2014 WL 3020426, the Court issued a short per curiam opinion, relieving a college, as an applicant for an injunction pending appeal, from the requirement of filing with the Department of Health and Human Services (HHS) a government-designated form for claiming the religious accommodation for non-profit religious employers — the same regulation that the Hobby Lobby majority had cited as possibly being a less restrictive means for providing contraceptives coverage. The college believed that merely by filing the form with HHS, it would be facilitating the provision of contraceptives to its employees and students.
The majority opinion did not cite the religious accommodation regulation. The dissent did. It was, shall we say, elementary, and no mystery, that it would receive a flag on KeyCite.