Tim Kaine: Confirming Neil Gorsuch jeopardizes women's rights (GREAT legal analysis)...

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Tim Kaine: Confirming Neil Gorsuch jeopardizes women's rights

http://www.cnn.com/2017/04/05/opinions/neil-gorsuch-tim-kaine-womens-rights-opinion/index.html

By Tim Kaine

Updated 5:15 AM ET, Wed April 5, 2017



..................... Judge Gorsuch has repeatedly taken an activist approach to a woman's right to make her own decisions about her health.

In 2013, Judge Gorsuch and his colleagues on the 10th Circuit Court of Appeals heard the Hobby Lobby case. This was a straightforward application of the Religious Freedom Restoration Act, passed by Congress to protect religious liberty. The question was whether a company could claim that its religious beliefs exempted it from providing certain types of birth control to employees as mandated by the Affordable Care Act.

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Judge Gorsuch wrote an opinion concurring with the majority. It is most revealing. First,
it stretched to find that the individual owners of Hobby Lobby could also challenge the ACA employer mandate even though they were not the "employer" to whom the mandate applied. More notably, while the majority opinion and the later Supreme Court ruling correctly described the legal issue as a clash between the employer's beliefs and the requirements of the ACA, Judge Gorsuch saw it differently:

"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."
"The wrongdoing of others"? Who are these "others," and what did they do wrong? They are the women who work for Hobby Lobby, and their "wrongdoing" was their desire to make their own choices about using contraception.

Moral questions of complicity in others' behavior had nothing to do with the legal question in this case. The only legal issue was whether the owner's beliefs about contraception conflicted with the ACA. So Judge Gorsuch's decision to inject his own editorial comment about women's "wrongdoing" was an insulting characterization of a personal choice protected by the law. His two uses of the phrase "all of us" also suggest that he was making a point far broader than what the parties to the case had presented to him.

This conclusion is given weight by his actions in two other cases that came before the 10th Circuit. Little Sisters of the Poor v. Burwell involved another challenge to the ACA contraception mandate. Planned Parenthood v. Herbert dealt with an effort by the state of Utah to defund Planned Parenthood.

In both cases, .......................................