Let us all take a moment to regain our composure. Things will get better. The playlist I have created for Tales From The Drop Box Episode 118 is calculated to brighten your day! Truly, this episode is mostly filled with sunshine. As you know, there is always a little darkness in these podcasts, but as I hope you will discover, this episode is filled primarily with sunny and bright indie pop and punk pop music. I should also probably note that Episode 118 is also mostly filled with a solid bunch of very new releases including the latest from Idles, Menace Beach and The Primals.
Now, I digress. Rather than weigh in on the clowns chasing their own tails in the current NYT Op-ed administration crisis ( which would be an easy target, unless you already had deduced that General Kelly was the primary author of what is a composite work), I thought this week, I would focus on an issue that may be significantly more consequential to America. The confirmation of Brett Kavanaugh as a justice of the U.S. Supreme Court.
In case you were not keeping track as to the happenings of the inquisition of the candidate for the Supreme Court, I was particularly taken with one aspect of those hearings. Sure, there is a ton of posturing, and Kavanaugh has revealed little in not answering any questions as to cases that might come before him as a judge. However, one small bit of testimony gave me pause as to whether Judge Brett Kavanaugh is actually qualified to be a justice on the Supreme Court. I think Kavanaugh is willing to disregard facts in reaching decisions which he believes are against his value system. That is, I believe Kavanaugh’s bias interferes with his ability to serve. We all have biases. The problem with Kavanaugh’s bias is that he is willing to create “facts” in order to confirm his bias. i.e. recognize as statement as a fact when no evidence exists supporting that fact.
During his testimony Kavanaugh referred to some forms of birth control as “abortion-inducing drugs.” You might think this statement is relatively innocuous. Certainly not a statement that should disqualify a candidate for the Supreme Court. Regardless of your views on abortion – pro-life or pro-choice, the adoptive use of this phrase reveals a complete disregard for science and fact based inquiry and portends, perhaps, that as a Supreme Court Justice Kavanaugh will decide cases not on fact but on his beliefs. This is dangerous because it requires transforming his opinion as to what he believes to be true into a fact to be relied upon in reaching a decision. There is not one bit of scientific support for his statement that some forms of birth control induce abortions. None.
You can already find stories trying to limit the harm created by Kavanaugh’s use of the term. (See Contraception Confusion: Judge Kavanaugh and Priests for Life.) Although, various commentators are currently engaged in some debate about what precisely Kavanaugh was testifying to at that time he responded with abortion-inducing drugs, the use is consistent with Kavanaugh’s dissenting opinion in the case Priests for Life v. DEPT. OF HEALTH & HUMAN SERV’S, 808 F.3d 1 (2015). The reference was given in response to Ted Cruz’s questions about the case. My impression of his testimony was that he was not discussing it from the litigant’s viewpoint, but rather my impression was that Kavanaugh has adopted the litigation position of Priest’s For Life, a pro life advocacy group who, along with a number of other groups including Catholic hospitals, clinics, universities, schools, and social services, challenged the contraceptive mandate provision of the Affordable Care Act on religious liberty grounds.
Why do I believe my impression is valid? An examination of the case itself lends support that Kavanaugh adopted Priest’s For Life’s position. Kavanaugh, dissenting from the denial of rehearing en banc wrote:
In my respectful view, the panel opinion misapplies the Religious Freedom Restoration Act and contradicts the Supreme Court’s recent decisions in Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), Wheaton College v. Burwell, ___ U.S. ___, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014), and Little Sisters of the Poor Home for the Aged v. Sebelius, ___ U.S. ___, 134 S.Ct. 1022, 187 L.Ed.2d 867 (2014). I would grant rehearing en banc and rule for the plaintiff religious organizations. (Id. at 14. (emphasis added).)
Kavanagh’s dissent is lengthy and worth the read because his reading of the religious freedom cases cited above weighs very heavily in protecting religious freedom (I believe a good thing) but, if Kavanaugh’s opinion was the law of the land, it would alter the carefully constructed balance between individual rights and a religious organization’s ability to interfere with those individual rights. Further, Kavanaugh wrote that HHS mandate would “substantially burden the religious organizations’ exercise of religion” (i.e. filing a form) and that “requiring the religious organizations to submit this form is not the Government’s least restrictive means of furthering its interest in facilitating access to contraception for the organizations’ employees.” This is where the rubber meets the proverbial road. One way of altering the balance between individual rights and freedom of religion is to impose limits on an individual’s right of access. What has become obvious in the wake of Roe v. Wade, is that for anti-abortion advocates, the best way to limit access to abortions is to impose governmental restrictions making it more difficult to obtain access, such as requiring hallways in clinics to be 8 feet wide (about double the width of a traditional office hallway. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (striking down primarily two portions of Texas HB-2 (1) the “admitting privileges requirement” provides that a “physician performing or inducing an abortion … must, on the date [of service], have active admitting privileges at a hospital … located not further than 30 miles from the” abortion facility and (2) the “surgical-center requirement” requires an “abortion facility” to meet the “minimum standards … for ambulatory surgical centers” under Texas law).
The erosion of various individual rights is perhaps is a discussion left best for another day. In the context of this post, Kavanaugh’s use of the phrase “abortion-inducing drugs” represents Kavanaugh’s shorthand for a position he has already adopted, i.e. a belief that there are forms of contraception that induce abortions. This is a reiteration of a pro-life belief that a fertilized egg is a person and that disrupting a fertilized egg’s ability to attach to the uterus is abortion which is “the moral equivalent of homicide.”
This “belief” has no scientific support. None. Kavanaugh’s adoption of the phrase is troubling because it represents an uniformed view of how birth control operates to prevent pregnancy and more distressingly is further stated as a “fact.” The law depends on actual facts and if a “belief” is declared a fact, then Kavanaugh should not be confirmed as a Supreme Court justice, because a holder of this lifetime appointment should not be able to create facts from his beliefs to decide cases and controversies.
Whether you are pro-life or pro-choice, America needs judges who rely on facts not on alternate facts. We have Trump to rely upon for those already.
Here is what you’ll find in Episode #118:
- Best Coast – “When I’m With You” (Best Kids)
- Big Mouthers – “Stupid War” (Wishes)
- Fourbanger – “Get Back Up” (Never Let Go)
- Me & Marie – “Sad Song To Dance” (Double Purpose)
- The Over Unders – “ One Fine Day” (One Fine Day)
- Vacationer – “Magnetism” (Mindset)
- Chistophe Deschamps – “This Is Time For Love” (Flower Power)
- Railway Gamblers – “Save Me” (Lover)
- Menace Beach – “Mutator” (Black Rainbow Sound)
- Idles – “I’m Scum” (Joy As An Act of Resistance)
- The Primals – “Dead Predators” (All Love Is True Love)
- Woolen Men – “Shadowline” (Post)
- Mowgli’s – “I Feel Good About This” (I Was Starting To Wonder)
- The Jags – “Back Of My Hand” ( Back of My Hand b/w Double Vision 7’’)
- Bad Moves – “One Thing” (Tell No One)
The world is lazy but you and me we’re just crazy so when I’m with you, I have fun … you’re not unreadable, you’re not unbeatable, I know just what you are, don’t push your luck too far you’re not untouchable, not just another girl
KFR