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Comment by rayiner | Hacker News Reader

Gorsuch is the most libertarian-leaning Justice we’ve had in decades. Others on the short list, such as Barrett or Kethledge, also have significant records of originalism with respect to the scope of the administrative state.

I don’t think libertarians realize where we are in 2020. Lots of culture war stuff from the last few decades where libertarians sided with liberals (abortion, contraception, same-sex marriage) has now flipped and then battleground is keeping the government from forcing people to participate in those things: Catholics being forced to perform elective abortions, nuns being forced to pay for contraception, people being forced to participate in same-sex weddings as bakers (and presumably caterers, etc.)

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Are you referring to the following story, where the US government is suing a hospital for not respecting the religious morality of a nurse?

https://www.bbc.com/news/world-us-canada-49515372

Yes, among other things: https://www.wsj.com/articles/federal-judge-strikes-down-rule.... Opposition to conscience rights--forcing medical providers to provide contraception or abortions in non-emergency situations when it is against their religious beliefs--is the next policy front for certain organizations: https://www.prochoiceamerica.org/issue/abortion-refusal-laws.

Nearly all EU countries recognize such conscience rights. Eliminating them would put the U.S. squarely outside the mainstream on this issue: https://en.wikipedia.org/wiki/Conscientious_objection_to_abo... ("Conscientious objection is granted in 22 member states of the European Union plus the United Kingdom, Norway and Switzerland.").

So the libertarian position is now that conscience cannot be protected by contract law between consenting parties?

The context of this is laws that would require providers to provide certain services, under which such a contract would be deemed illegally opting out (as set forth in the court case linked above). That’s the whole point of this effort.

Is there a law in the US that forces a doctor to perform an abortion or a nurse to participate? Aside from one that says that your employer can ask you to fulfill the terms of your contract or lose your job? It seems that the vast majority of laws limiting physician freedom are being proposed or passed to prevent them from performing abortions, counseling patients about abortion, or discuss guns in the household.

Even in the absence of a specific law, medical providers can always be sued. Part of the push to redefine elective abortion from a right rooted in bodily autonomy to being “routine healthcare” is to open providers to lawsuits for refusing to provide them: https://thehill.com/opinion/healthcare/390968-abortion-refus...

Ah, now you’re reminding me of a case in Ireland where they let the Hindu, not Catholic, patient die because they did not believe in abortion. That is not a scenario I want in my life. Doctors choosing your morals for you and calling it their conscience?

I guess it’s the libertarian thing. Your right to swing your arm ends at my nose.

Except it’s not just about emergency care. (In that case I’d argue it’s a critical public safety issue.) Advocacy groups are targeting the practice generally, because providers opting out can mean that people have to travel further to get an elective abortion, sterilization, contraception, etc. You don’t have to be all that libertarian to believe that in non-emergency situations, doctors should be able to tell people to go somewhere else to get a procedure the doctor doesn’t wish to perform.

And, of course, since the doctor is also an active participant in killing the fetus, it’s not the “doctor imposing morals in the patient.”

There’s more to it. They often know at 8 weeks that an ectopic pregnancy is there. It won’t be for another 30 weeks that it becomes a problem. So, not really an emergency room situation but something where you might be in the room with your Ob/Gyn. If that person thinks abortion is murder they shouldn’t let you know that other doctors will happily murder your fetus to save you. If you die it’s god’s will. If the baby dies in 30 weeks, that’s also god’s will. You’re saying that the doctor should be held harmless withholding that information?

> If that person thinks abortion is murder they shouldn’t let you know that other doctors will happily murder your fetus to save you. If you die it’s god’s will. If the baby dies in 30 weeks, that’s also god’s will. You’re saying that the doctor should be held harmless withholding that information?

Obviously not. To begin, no religion I’m aware of would preclude informing the patient in that circumstance. And few libertarians believe that individual freedom requires allowing deception of others, as in your hypothetical.

Apart from that, weighing individual liberty interests is always context-dependent. E.g. consider the various wrinkles when it comes to self defense. For a libertarian, forcing doctors to perform a procedure that involves killing something (whatever you think that thing is) in non-emergency circumstances just because that might leave too few people in an area willing to do that probably falls too far on the side of ignoring individual liberty. It’s the basic libertarian position: you may have a right to something, but you don’t have a right to make someone else give you that thing.

> Catholics being forced to perform elective abortions, nuns being forced to pay for contraception, people being forced to participate in same-sex weddings as bakers

so the solution is to ban abortions, contraceptives, and same-sex marriage altogether?

In almost 50 years of a conservative Supreme Court majority, what major liberal precedent has been overturned? Basically none. Heck, Roe itself was a 7-2 decision with two Nixon appointees in the majority. Roberts won’t vote to overturn Roe, neither will Gorsuch, and probably neither will Kavanaugh. Kavanaugh, a Kennedy disciple, won’t undo Obergefell, probably neither will Gorsuch. History shows that conservative justice at best hold the line on social issues, or continue to move forward.

Look at the political debates likely to come up over the next 10 years and tell me where libertarians are aligned with liberals. Apart from the things I mentioned above, cases that will come up may include the constitutionality of a wealth tax, changes to equal protection to allow discrimination in favor of particular groups, firearms confiscation, etc. (I’m not saying all of these will happen, I’m pointing out what the next legal battlegrounds will be.)

> conservative justice at best hold the line on social issues, or continue to move forward.

The difference is that—unlike racial justice, women's rights, and gay rights—in this case abortion was a mistake and so the step forward would be to reverse it. If you go back far enough, society has successfully reversed actions that were at the time considered forward progress.

Dude you are really going to town on this posting. Kudos for fighting the good fight, I'm trying to balance out the downvotes but I'm clearly outnumbered lol. I always feel dirty AF after these flamewars so I don't know how you can do it.

Also, I think most of the "right libertarians" are already Trump votes out of sheer disgust and exasperation. Libertarians (of any stripe) are probably the least likely to get hot and bothered by Trump's antics.

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