Drudge Retort: The Other Side of the News
Thursday, September 06, 2018

On the third day of Supreme Court nominee Brett Kavanaugh's confirmation hearing in front of the Senate Judiciary Committee, he referred to contraception as "abortion-inducing drugs."

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This is how the right thinks, folks. Register. And vote.

#1 | Posted by cbob at 2018-09-06 07:51 PM | Reply | Newsworthy 1

You have two front page threads with the exact same links???

#2 | Posted by gracieamazed at 2018-09-06 07:54 PM | Reply

Kavanaugh could be the biggest motivator of Democratic voters in decades.

#3 | Posted by danni at 2018-09-06 08:00 PM | Reply | Newsworthy 1

You have two front page threads with the exact same links???

#2 | Posted by gracieamazed

So what? The DR made an error, OMG! Ignore the subject matter at hand, little sheep. lol.

#4 | Posted by horstngraben at 2018-09-06 08:03 PM | Reply

Keep women in the kitchen...barefoot and pregnant. Jeebus says so!

#5 | Posted by horstngraben at 2018-09-06 08:07 PM | Reply

Does anyone actually still believe Kavanaugh will let Roe stand???

#6 | Posted by snoofy at 2018-09-06 08:08 PM | Reply

"Does anyone actually still believe Kavanaugh will let Roe stand???" - #6 | Posted by snoofy at 2018-09-06 08:08 PM

If he's confirmed, Kavanaugh's vote alone won't matter.

Besides, the end game isn't killing Roe.

The end game is upholding draconian state laws that, effectively, kill choice in those states. and states that follow that example.

And then, magically, we'll be exactly where we were in December, 1972: Abortion legal in the blue states of, say, California and New York, but unobtainable in red states like Alabama and Mississippi.

Meanwhile, middle-class whites in those red states will simply fly/drive to the "legal" blue states, and the women from red states who wore the "grab this" tee-shirts at Trump rallies won't have access to abortion services and won't be able to afford to travel to blue states.

And somehow, they'll find a way to blame Democrats... because, Hillary had emails.

#7 | Posted by Hans at 2018-09-06 08:16 PM | Reply | Newsworthy 4

You have two front page threads with the exact same links???

#2 | Posted by gracieamazed

A supreme court justice being this stupid deserves 2 threads.

This shows he is so dumb he buys all the right wing talking points the high school dropout breitbart readers buy into.

#8 | Posted by SpeakSoftly at 2018-09-06 10:09 PM | Reply

So what? The DR made an error, OMG!

Gracie is just pissed she can only get on the front page with a dead celebrity.

#9 | Posted by REDIAL at 2018-09-06 10:20 PM | Reply

- a dead celebrity.

But enough about Trump's presidency...

#10 | Posted by Corky at 2018-09-06 10:36 PM | Reply

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oh, donald will make two more years.

#11 | Posted by REDIAL at 2018-09-06 10:48 PM | Reply

I'd like to see where Kavanaugh referred to birth control as an "abortion-inducing drug." It isn't in the opinion HuffPo is writing about. That phraseology is from Dawn Laguens, executive vice president at the Planned Parenthood Action Fund.

#12 | Posted by et_al at 2018-09-06 11:29 PM | Reply

apparently et al isn't intelligent enough to click the video in the link.

#13 | Posted by Alexandrite at 2018-09-06 11:36 PM | Reply

#13

Correct, I very rarely watch videos.

#14 | Posted by et_al at 2018-09-06 11:38 PM | Reply

i apologize for the cheap shot. having a bad day. Hope yours is better.

#15 | Posted by Alexandrite at 2018-09-06 11:42 PM | Reply

Not a single complete sentence of Kavanaugh was quoted in the article, much less an entire paragraph giving some context. It's absurd to insinuate that he thinks birth control means chemical abortions.

Not a single Democrat attacked him on that this afternoon.

#16 | Posted by nullifidian at 2018-09-06 11:44 PM | Reply

What an insufferably scientific sub-literate this man is. birth control pills prevent abortion.

#17 | Posted by Tor at 2018-09-06 11:44 PM | Reply

"only"

#18 | Posted by nullifidian at 2018-09-06 11:45 PM | Reply

However, I have since watched a clip from c-span. www.c-span.org

He is paraphrasing the position of one of the litigants in the case. He did not state that he believes birth control in an abortion inducing drug.

#19 | Posted by et_al at 2018-09-06 11:45 PM | Reply

Besides, the end game isn't killing Roe.
The end game is upholding draconian state laws that, effectively, kill choice in those states. and states that follow that example.

Which is...effectively killing Roe.

And I don't even think that that's the end game, it's just the shiny social issue being thrown out to keep us occupied.

The end game is cementing the donor class's objectives behind "legal" barriers. Worker's protections, environmental protections, consumer protections...anything that threatens corporate bottom lines will be gone and challenging their removal in courts will be a waste of time and money.

I'm going to brush up on my Robber Barons history because I think that's where we're headed.

#20 | Posted by jpw at 2018-09-06 11:47 PM | Reply

--sub-literate this man is. birth control pills prevent abortion.

You do know the difference between birth control pills that prevent pregnancy and the abortion pill that induces an abortion, right?

#21 | Posted by nullifidian at 2018-09-06 11:53 PM | Reply

i apologize ...

Not a problem.

Hope yours is better.

Not really. Had a depressing meeting today with the wife of a guy, that I'm representing in a construction lawsuit, who just died twelve days after being diagnosed with kidney cancer.

#22 | Posted by et_al at 2018-09-06 11:55 PM | Reply

"He is paraphrasing the position of one of the litigants in the case. "

Two problems:

1- he agreed with their position of it being a burden of complicity on their religion.

2- which makes it seem like he agrees with their position, which was wrong on a bioligical level.

#23 | Posted by Alexandrite at 2018-09-07 12:00 AM | Reply

"And I don't even think that that's the end game, it's just the shiny social issue being thrown out to keep us occupied."

and the silver pieces the trump hating republicans are being paid to keep him in office.

#24 | Posted by Alexandrite at 2018-09-07 12:01 AM | Reply

and the abortion pill that induces an abortion, right?

#21 | POSTED BY NULLIFIDIAN

You don't actually know what you're talking about beyond the useful idiocy you've come to love as of late, do you?

#25 | Posted by jpw at 2018-09-07 12:08 AM | Reply

Come on smart guy, educate me.

#26 | Posted by nullifidian at 2018-09-07 12:12 AM | Reply

Contraception pills are, be definition, intended to prevent pregnancy.

Either by preventing ovulation or, in the case of emergency contraception, blocking implantation of a fertilized egg.

They don't "induce abortion". Taking drugs to do so isn't contraception, it's an actual abortion, which is called a medical abortion.

One is preventative the other is reactive.

#27 | Posted by jpw at 2018-09-07 12:19 AM | Reply | Newsworthy 1

Exactly what I said, smart guy. The abortion pill is taken after pregnancy has been established.

#28 | Posted by nullifidian at 2018-09-07 12:21 AM | Reply

Two problems:

Yes he agreed with the litigant's legal position regarding "substantial burden." I see nothing in the clip or the dissent he wrote that suggests he agrees with the litigant's apparent factual position that birth control is an abortion inducting drug. Though I only skimmed his opinion, I do not find that he discussed the factual positions beyond conclusory terms necessary to frame the legal issues, he wrote nothing about abortion inducting drugs.

However, I did see this, "The plaintiff religious organizations strenuously argue that there is no such compelling governmental interest [to require provision of contraception]. As I see it, however, plaintiffs' argument cannot be squared with the views expressed by a majority of the Justices in Hobby Lobby." That should go a long way in allaying the breathless fears raised in the HuffPo article.

#29 | Posted by et_al at 2018-09-07 12:28 AM | Reply | Newsworthy 1

Crap, "inducing." Long day.

#30 | Posted by et_al at 2018-09-07 12:30 AM | Reply

I'd like to know the laymans term for this abortion pill since I am unfamiliar with it. I've heard of the morning after pill but I wouldn't call it an abortion pill.

But still a woman's choice of control of her body and her physicians counsel is NONE OF YOUR ------- BUSINESS!

#31 | Posted by bruceaz at 2018-09-07 12:35 AM | Reply | Newsworthy 1

The abortion pill is taken after pregnancy has been established.

#28 | POSTED BY NULLIFIDIAN

From your earlier post:

It's absurd to insinuate that he thinks birth control means chemical abortions.

The cases he was discussing involved contraception, not medical abortions.

Why else would he refer to them in such a way? Or does he understand the difference but uses the more inflammatory language anyway?

#32 | Posted by jpw at 2018-09-07 12:36 AM | Reply

-- I've heard of the morning after pill but I wouldn't call it an abortion pill.

It's not.

www.verywellhealth.com

#33 | Posted by nullifidian at 2018-09-07 12:38 AM | Reply

the litigant's apparent factual position that birth control is an abortion inducting drug.

Except birth control isn't an abortion inducing drug. So it's not factual. Apparent or otherwise.

#34 | Posted by jpw at 2018-09-07 12:39 AM | Reply

#33 Thanks Nulli

2nd part of my post still stands.

#35 | Posted by bruceaz at 2018-09-07 12:42 AM | Reply

The only one I know of is the Plan B.

#36 | Posted by MSgt at 2018-09-07 12:47 AM | Reply

The only one I know of is the Plan B.

#36 | POSTED BY MSGT

Still not abortion inducing.

en.wikipedia.org

Gives the names of common medications used to induce a medical abortion.

#37 | Posted by jpw at 2018-09-07 12:52 AM | Reply | Newsworthy 1

Thank God the government is here to enforce conservatives fetish, to prevent other friends living their lives the way they see fit.

#38 | Posted by ClownShack at 2018-09-07 12:52 AM | Reply

#34 | Posted by jpw

Nevertheless, in the clip, he was paraphrasing the litigant's factual position whether correct or not. The other dissent in the case, by Judges Brown and Henderson state the litigant's position directly, "[t]he regulations compel Plaintiffs to take actions they believe would amount to "impermissibly facilitating access to abortion-inducing products, contraceptives, and sterilization" in violation of their religious tenets. (internal quotes original)" Again, whether factually correct or not, that is the litigant's position not Kavanaugh's. At least, as far as I'm aware.

#39 | Posted by et_al at 2018-09-07 01:35 AM | Reply

he was paraphrasing the litigant's factual position whether correct or not.

Ummmm...

Again, whether factually correct or not, that is the litigant's position not Kavanaugh's. At least, as far as I'm aware.

This actually raises a question I've been curious about for a while.

To what extent is medical evidence and expertise considered in these cases relative to the issues at hand, ie "religious freedom"?

Do judges generally defer to a plaintiff's language when deciding a case or can they object to language in the original case/suit as grounds for dismissal?

#40 | Posted by jpw at 2018-09-07 01:52 AM | Reply

This actually raises a question I've been curious about for a while.

A fair question. One I can't answer within the limited confines of the forum. It goes too deep into the weeds. Basically it depends on the procedural posture of the case. Not speaking to the case referenced in the article because I have not read the merits opinion, there are generally three procedural postures of any given case or appeal. First, a motion to dismiss for failure to state a legal claim. In that event the court is required to accept all fairly pleaded facts by the plaintiff as true. Next is a motion for summary judgement that says there are no disputed issues of fact and the movant is entitled to judgement as a matter of law. Then the opposing party must provide evidence of a genuine issue of material fact. Those issues of fact, if they exist, must be decided by the trier of fact whether a jury or trial to the court. Finally, if the facts are tried, jury or judge, then that decision makers findings are generally given great weight on appeal.

Whatever the posture, trial courts are not supposed to inject themselves into the case, lest they appear to favor one side or the other. It is up to the litigants to present their evidence and and make objections to opposing evidence. Trial judges should restrict themselves to their defined roles depending on the procedural posture. Most do, some don't. Manafort's judge was criticized for stepping outside his procedural role, right or wrong. Appellate judges deal with law not facts as a general proposition.

Don't jump off the cliff with this. I've tried to give you a few sentences that encapsulate the death of entire forests of paper expended in legal writing.

#41 | Posted by et_al at 2018-09-07 03:49 AM | Reply

This guy is always "quoting the litigants" to hide behind their views (too often for it to be plausible deniability) - or the dissenting opinion in overruled cases over precedent - when it comes to abortion or birth control. Just like he did with Jane Doe.
It's useful to keep in mind that he wasn't on the original Heritage list of judges, but was added recently. Now he's #1 with Trump. Why? His out of the norm views on 'can't investigate, can't indict, can't subpoena' a sitting President. Trump gets all he can hope for, and he delivers an ideologue that appeases the religious wackos

#42 | Posted by YAV at 2018-09-07 07:22 AM | Reply

For background, the case was about a religious group's objection to the ACA contraceptive mandate. That mandate covers a wide swath of contraceptives, including birth control pills, IUD's and the Plan B pill.

When Kavanaugh said "abortion inducing drug," he was not "paraphrasing " a litigant's argument. He was asked by Ted Cruz to explain the case and it's obvious he was doing so in his own words.

The only item covered by the mandate that could even come close to being an "abortion inducing drug" is the Plan B pill. While describing the entire matter at issue in this way, it appears he has adopted the inflammatory language of a litigant which rightly gives womens' rights activists pause.

#43 | Posted by JOE at 2018-09-07 08:39 AM | Reply | Newsworthy 2

Good clarification, and setting the record right, Joe.

#44 | Posted by YAV at 2018-09-07 09:53 AM | Reply

Don't jump off the cliff with this. I've tried to give you a few sentences that encapsulate the death of entire forests of paper expended in legal writing.

#41 | POSTED BY ET_AL

I didn't plan on it.

Just figured I'd ask as I've wondered in the past whether a court can or will comment on the validity of facts presented in a case and because it seems appropriate in this case.

#45 | Posted by jpw at 2018-09-07 10:06 AM | Reply

Do judges generally defer to a plaintiff's language when deciding a case or can they object to language in the original case/suit as grounds for dismissal?

It depends largely on what stage the case is at.

If the defendant has moved to dismiss the case for failing to state a claim, judges are obligated to view the facts in the light most favorable to the plaintiff. In other words, they essentially have to take the plaintiff's version of the facts as true for purposes of deciding the motion.

If the case is at the summary judgment stage (basically one or both sides arguing for a decision in their favor based on the papers they have presented), judges can only decide the case on what the undisputed facts are at that time. If there are factual matters still in genuine dispute, and those matters are material to the decision, the judge will not decide the case and will send it to trial.

At the trial stage, factual matters are sussed out and the judge decides whose versions of the facts to accept based on documents, testimony, credibility, etc.

In the Priests For Life case (the one we're talking about here), the case had already been decided against the plaintiffs by a panel of non-Kavanaugh judges, and the plaintiffs had sought a second hearing in front of a complete panel that would have included Kavanaugh. It was only at this point that Kavanaugh had an opportunity to write in dissent from the rest of the court's decision to deny a re-hearing. By that point, the facts on what the ACA requires employers to cover had already been determined, and Kavanaugh wasn't stupid enough to pretend in front of his colleagues that it was all "abortion inducing drugs." He reserved that sort of stupidity for Ted Cruz and those of us watching his confirmation hearing.

#46 | Posted by JOE at 2018-09-07 11:04 AM | Reply

Oops. Et al already answered. My bad.

#47 | Posted by JOE at 2018-09-07 11:05 AM | Reply

Oops. Et al already answered. My bad.

#47 | POSTED BY JOE

Your post seems to differ, though, from what Et al answered. Mainly in whether Kavanaugh at that point was supposed to take the plantiff's facts as a given or consider the facts of the case. I am hoping for a continuation of the conversation to clarify.

#48 | Posted by gtbritishskull at 2018-09-07 11:39 AM | Reply

-- I am hoping for a continuation of the conversation to clarify.

Since none of the Democrat women, and Spartacus, jumped on him for that wording yesterday, obviously it's a big nothingburger.

#49 | Posted by nullifidian at 2018-09-07 11:48 AM | Reply

Your post seems to differ, though, from what Et al answered. Mainly in whether Kavanaugh at that point was supposed to take the plantiff's facts as a given or consider the facts of the case. I am hoping for a continuation of the conversation to clarify.

I don't see a difference between et al and myself in that respect. Et al noted that appellate judges "deal with law, not facts." To expand on that, in most cases, appellate judges give tremendous deference to a lower court judge's findings of fact, and there was nothing unique about the Priests For Life case that would warrant a departure from that standard. Kavanaugh was on the appellate court. The facts had already been found, and the plaintiff appealed on the law and lost. Kavanaugh's involvement began when the plaintiff sought a re-hearing by the full slate of appellate court judges. At that point (post-trial and post-appeal), the facts were largely beyond dispute, and the argument between judges on whether to grant re-hearing was not an argument on the facts. It was a disagreement on the law.

At the same time, i have far bigger beefs with Kavanaugh than on this one utterance he made yesterday, and i tend to agree with Nulli for that reason.

#50 | Posted by JOE at 2018-09-07 11:58 AM | Reply

When Kavanaugh said "abortion inducing drug," he was not "paraphrasing " a litigant's argument.

Then I suppose we have a different understanding of the pronouns "they" and "them." www.c-span.org

#51 | Posted by et_al at 2018-09-07 01:14 PM | Reply | Newsworthy 1

I've wasted far too much time on this as it is, since i have far bigger objections to Kavanaugh, but i took a look at the Priests For Life complaint, and not even they argued that the required coverages under the ACA were limited to "abortion-inducing drugs." Instead, they more accurately stated that the required services included "contraception, sterilization, abortifacients, and related education and counseling."

So even if Kavanaugh was attempting to "paraphrase," he was either cherry-picking or flat-out mischaracterizing. Your choice.

#52 | Posted by JOE at 2018-09-07 02:34 PM | Reply

We're well past the point where someone needs to ask Kavanaugh "If it's a legitimate rape, the female body has ways to try to shut that whole thing down?"

#53 | Posted by snoofy at 2018-09-07 02:47 PM | Reply

"Yes he agreed with the litigant's legal position regarding "substantial burden." I see nothing in the clip or the dissent he wrote that suggests he agrees with the litigant's apparent factual position that birth control is an abortion inducting drug. Though I only skimmed his opinion, I do not find that he discussed the factual positions beyond conclusory terms necessary to frame the legal issues, he wrote nothing about abortion inducting drugs."

Here is what was wrong with this decision by Kananaugh. He claims the Congress should make the laws, Congress did make the law. It was voted on and approved by Congress. When inconvenient though, Kavanaugh thinks Congress should be ignored. He's a religious nut case and defending him, while not making you a religious nut case, does make you a partisan hack. Your big words and covoluted logic are just garbage, the intent of Congress was obvious, there was not invasion of the rights of the religious unless you consider that a blood transfusion paid for under ACA violates some religion's rights. The whole thing was -------- and it still is and those who supported this reduction in women's rights are simply misogynist --------.
That's the real truth without the big words and convoluted logic.

#54 | Posted by danni at 2018-09-08 06:05 PM | Reply

He claims the Congress should make the laws, Congress did make the law.

Congress also wrote the law at issue in that case. The RFRA, enacted by near unanimous vote of a Democrat controlled House and Senate and signed by a Democrat President. That law says the federal government, including Congress, through the ACA or any other statute, cannot "substantially burden" a person's religious beliefs. Don't like it, your beef is with Congress not judges that apply the laws Congress writes. I preferred Scalia's opinion in Smith which the RFRA was written to override. That opinion basically said neutral laws apply equally to all, religious or otherwise. But the Democrat controlled legislature and President felt the religious need an exemption sometimes.

One more time, Kavanaugh wrote not one word in his opinion about "abortion inducing drugs." Which is the phrase that wound up the hysterics. In his testimony, he paraphrased the position of the litigants and repeated their words not his.

Stick that in your pipe and smoke it.

#55 | Posted by et_al at 2018-09-08 07:11 PM | Reply

"Stick that in your pipe and smoke it."

Big Tobacco likes your idea of invoking "religious freedom" to circumvent the workplace smoking ban, the way it's been used to ignore Obamacare and protect pharmacists who don't want to do their job because of their personal beliefs.

Someone needs to ask Kavanaugh if RFRA can exempt an employer from hiring people with the Mark of Cain.

#56 | Posted by snoofy at 2018-09-08 07:19 PM | Reply

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