Aborting the Filibuster

by Ed Whelan

According to this New York Times article, “abortion and contraceptive rights became the decisive factor” leading Senate Democrats to abolish the filibuster for judicial nominees. That shouldn’t come as a surprise to anyone who has been paying attention in recent decades to how dominant abortion is in the priorities of the Democratic Party.

While I’m at it, though, I’ll point out some errors in the NYT article:

1. The article states:

[Democratic leader Harry] Reid and many members of his caucus found it especially disquieting that in 2005 they agreed to confirm the two judges who wrote the recent decisions — Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit and Priscilla R. Owen of the United States Court of Appeals for the Fifth Circuit — as part of a deal with Senate Republicans.

But Reid and nearly all members of his caucus voted against the confirmations of Brown and Owen. Brown was confirmed by a vote of 56-43, with only one Democrat supporting her. Owen was confirmed by a vote of 55-43, with only two Democrats in support.

Further, Democrats didn’t strike a general “deal” with Republicans. There was only a very limited agreement between seven Democrats and seven Republicans—the so-called Gang of 14 agreement. (See point 3 here for more.)

2. The article claims that Judge Brown’s D.C. Circuit decision in favor of a challenge to the HHS contraceptive mandate “likened the government’s requirement that the company cover birth control for its employees to affirming ‘a repugnant belief’ and wrote that the company would be forced to be ‘complicit in a grave moral wrong.’” (The opening paragraph of the article likewise claims that the opinion “compared contraception to ‘a grave moral wrong.’”)

Brown’s opinion uses the  phrase “a repugnant belief” twice (pp. 19-20)—both times in quoting Justice William Brennan’s statement of the old Free Exercise standard that the federal Religious Freedom Restoration Act restored. Her references to “a repugnant belief” and “complicit in a grave moral wrong” (p. 20) are describing, from the perspective of the religious objectors, the dilemma that the HHS mandate places them in. One can recognize that dilemma, and one can describe it as Brown has, without endorsing the moral positions of the religious objectors. So, in context, I don’t think that it’s accurate to maintain that Brown is expressing her own views about contraceptives that sometimes might operate as abortifacients.

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