Monday, March 20, 2017

More Than A Misunderstanding

"This article is kind of crazy," remarks a Slate commenter. He/she continues "While the author's arguments are all reasonable, what she's suggesting is that someone with Gorsuch's views, essentially, should be blackballed from the Supreme Court."

Not "blackballed," only viewed realistically.

In June, 2013 Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit issied a concurring opinion supporting Hobby Lobby in a case pertaining to the Religious Freedom Restoration Act and the Free Exercise Clause (video below from 6/23).   Dahlia Lithwick cogently explains

It’s not just the great deference Gorsuch shows religious adherents that is worrisome. He also believes that the views of religious adherents are beyond factual debate. Again in the Hobby Lobby case, he wrote that companies must pay for “drugs or devices that can have the effect of destroying a fertilized human egg.” That claim is simply false, even with regard to Plan B. It is a religious conclusion, not a medical or legal one. Whether that view is his or he simply declines to probe whether the religious conclusion is accurate, the effect is the same: He has written into a legal opinion a religious “fact” not supported by medical science. 

Far from being narrow-minded, Lithwick is being generous, for Judge Gorsuch had written

All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case. 

As the Greens explain their complaint, the ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong. No one before us disputes that the mandate compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg. No one disputes that the Greens’ religion teaches them that the use of such drugs or devices is gravely wrong.

"No one disputes" the claim that contraceptive drugs and devices destroy a fertilized human egg, claims Neil Gorsuch. That destructive impact is either his own view or one which he blithely accepts out of naivete or convenience. The Judge is either grossly ignorant or grossly negligent given that, as this pro-reproductive rights site argues

Implantation is what sets in motion all the signs that pregnancy has begun. On this one point, science, medicine and the law agree: implantation is the moment at which pregnancy starts. The only dissenting group is the pro-life movement, which dismisses this definition. It, instead, would like pregnancy to start at the unknowable moment the sperm fertilizes an egg. Once sperm meets egg, any effort to prevent the egg from implanting in the womb is considered an abortion by the pro-life movement. This is one of the arguments they offer up as justification for the campaigns to keep women from using birth control. Their claim is that most birth control methods prevent fertilized eggs from implanting in the womb, which to them, though not to science, is an abortion. But even that is not true. There is no evidence that birth control methods actually do what pro-life groups claim.

"No one disputes" now appears to be Gorsuch Shorthand for "most dispute."   But this is not an issue of abortion, nor even entirely of reproductive rights. It suggests that a prospective Supreme Court Justice fails to respect the concept of the wall of separation between church and state.   Lithwick concludes

Gorsuch’s defenders point to the fact that he has been an equal-opportunity defender of religious liberties, including in cases that involve plaintiffs from minority faiths. And this is precisely the point. Gorsuch’s own faith is not at issue here. At a Supreme Court confirmation hearing, we should not be talking about the beliefs a nominee may hold in his heart. Instead, we need to focus on whether his accommodation of the beliefs of others overmasters not just scientific fact and neutral civil rights laws, but also the interests and values of people of different faiths and those who reject religion altogether.

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