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Bringing Back the "Uncommonly Silly Law"? Seriously?

In Griswold v. Connecticut (1965), the Supreme Court famously declared unconstitutional a Connecticut statute that banned all use of contraceptives. Justice Potter Stewart, dissenting along with Justice Hugo Black, said, " I think this is an uncommonly silly law." He dissented because "we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do."

Is the United States in danger of a resurgence of such uncommonly silly, unwise, and asinine laws if Brett Kavanaugh is confirmed to the Supreme Court? I would have thought the very suggestion to be uncommonly silly, but last Friday Senator Kamala Harris treated her followers to this tweet:

Kavanaugh chooses his words very carefully, and this is a dog whistle for going after birth control. He was nominated for the purpose of taking away a woman's constitutionally protected right to make her own health care decisions. Make no mistake - this is about punishing women.
Washington Post fact-checker Glenn Kessler -- definitely no friend of conservative causes -- awards Sen. Harris the maximum Four Pinocchios. This is a "whopper."

During the Senate Judiciary Committee hearings, Sen. Ted Cruz (R-Tex.) questioned Kavanaugh about the case, asking: "Can you tell this committee about that case and your opinion there?"

"That was a group that was being forced to provide a certain kind of health coverage over their religious objection to their employees, and under the Religious Freedom Restoration Act, the question was first, was this a substantial burden on the religious exercise? And it seemed to me quite clearly it was," Kavanaugh replied. "It was a technical matter of filling out a form, in that case with -- that -- they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were -- as a religious matter, objected to."

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Some might argue that it's a judgment call, open to legal interpretation, as to whether Kavanaugh "uncritically" used a term that riles advocates of abortion rights.

But a plain reading of Kavanaugh's answer during the hearings shows that it is broadly consistent with his written opinion. One can question why he used the phrase "abortion-inducing drugs" rather than "abortion-inducing products" or "abortifacients." But it's pretty clear from the context that he was quoting the views of the plaintiffs rather than offering a personal view.

Harris's original tweet, with the "they say" language removed, was slightly mitigated by the second tweet a day later, providing the full context. But there was no acknowledgment by Harris that the original tweet was misleading. She earns Four Pinocchios -- and her fellow Democrats should drop this talking point.

Whether Stewart and Black were correct as a matter of original understanding or not, Griswold is in no danger. It is precedent, and there is no good reason for reopening the question. It causes no continuing harm. In any event, no state legislature in the United States today would enact such a law.

On the more limited issue of employer religious objections regarding health care benefits, this is an issue with a limited lifespan. Obamacare injected poison into the veins of employer-provided healthcare with malice aforethought, and while the poison is slow-acting it will eventually do the job. Employer involvement in health plans will be gone in the not-too-distant future. Short term, Hobby Lobby is precedent no matter who succeeds Justice Kennedy; long term, the issue will be moot.

Here is a handy rule of thumb for evaluating comments like Senator Harris's. When anyone uses the term "dog whistle," there is a 99.9% chance they are winding up for a "straw man fallacy" argument. When you can't attack your opponent's real position, you claim he is saying something different than what he is actually saying and then attack that -- set up a straw man and then knock it down. Poor Scarecrow. He hasn't been beaten up this much since the flying monkeys.

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