Kavanaugh opponents mischaracterize statements on birth control

Share |
Increase font size Decrease font size

People protesting the Supreme Court nominee Brett Kavanaugh at a rally in Foley Square in Lower Manhattan. Credit: Christopher Penler_Shutterstock

Opponents of Judge Brett Kavanaugh are suggesting that a reference to birth control pills as “abortion-inducing drugs” during Senate confirmation hearings last week represents the judge’s personal opinion. The backlash stems from questions put to the Supreme Court nominee about a past case in which he wrote a dissenting opinion.

During last week’s hearings, Sen. Ted Cruz (R-TX) asked Kavanaugh about a 2012 lawsuit brought by the pro-life organisation Priests for Life filed against the Department of Health and Human Services (HHS) over the Affordable Care Act’s contraception mandate. Kavanaugh wrote a dissenting opinion in response to a lower court’s refusal to re-hear the case.

The mandate obliged insurers to include chemical contraception in a list of medications that would be covered without a copay. Cruz asked Kavanaugh to explain the case, and his opinion on the matter.

“Under the Religious Freedom Restoration Act, the question was, first, was this a substantial burden on the religious exercise? It seemed, to me, quite clearly, it was,” said Kavanaugh.

“It was a technical matter of filling out a form, in that case. But 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."

In 2015, the Supreme Court agreed to review that particular case along with six others in the consolidated case Zubik v. Burwell, eventually remanding the individual cases back to the lower courts. In 2016 the government settled with Priests for Life, agreeing not to enforce the mandate and its associated fines, and to pay Priests for Life’s legal fees.

In the full context of the exchange between Kavanaugh and Cruz, it is clear that Kavanaugh was referring to how Priests for Life described contraceptives, and not giving his own views. However, many opposed to Kavanaugh’s nomination to the Supreme Court have said the exchange illustrates pro-life bias by the nominee.

The Women’s March called the statement an “emergency, all-hands-on-deck moment for women” and said that “now we know he thinks birth control is abortion.” A statement issued via email did not clarify that Kavanaugh had been offering a summary of the case, not a personal view.

Sen. Kamala Harris (D-CA), who is considered by many to be a potential Democratic presidential candidate in 2020, said via Twitter that while Kavanaugh “chooses his words very carefully,” his response to Cruz was a “dog whistle for going after birth control.”

Harris also said that Kavanaugh “was nominated for the purpose of taking away a woman’s constitutionally protected right to make her own health care decisions,” and that his nomination was “about punishing women.”

The tweet included a video of Kavanaugh saying: “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.” The video left out the part of the exchange where the judge clarified that it was the group that believed this, not himself. The fact-checking website PolitiFact rated Harris’ characterization as “false.”

Kavanaugh, a practicing Catholic, has not publicly stated his thoughts about birth control the Church’s teaching on the topic.  He has consistently affirmed his commitment to judicial precedent and the need for judges to apply the law to each case with dispassion.

Share |
Increase font size Decrease font size