Har­ris’s claim about Ka­vanaugh and birth con­trol is mis­lead­ing

The Washington Post Sunday - - POLITICS & THE NATION - Glenn.kessler@wash­post.com

“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.”

— Sen. Ka­mala D. Har­ris (DCalif.), in a tweet, Sept. 7, 2018

Har­ris took aim at Supreme Court nom­i­nee Brett M. Ka­vanaugh for com­ments he made re­gard­ing “abor­tionin­duc­ing drugs” when dis­cussing a case brought by an an­tiabor­tion re­li­gious group chal­leng­ing Oba­macare rules on pro­vid­ing em­ploy­ees health cov­er­age for con­tra­cep­tion. She is not the only Se­nate Demo­crat to claim that Ka­vanaugh might un­der­mine ac­cess to birth con­trol if he wins a seat on the court — El­iz­a­beth War­ren (Mass.), Jeff Merkley (Ore.) and Dianne Fe­in­stein (Calif.) did as well — but we will fo­cus on Har­ris be­cause she tweeted out a video that snipped out a key part of his state­ment.

A day later, it should be noted, Har­ris replied to her tweet with an­other video that pro­vided the full con­text for Ka­vanaugh’s state­ments. But she then dou­bled down on her main point: “There’s no ques­tion that he un­crit­i­cally used the term ‘abor­tion-in­duc­ing drugs,’ which is a dog whis­tle term used by ex­treme anti-choice groups to de­scribe birth con­trol.”

The Facts

In 2013, Priests for Life and other Catholic hos­pi­tals, uni­ver­si­ties and the like sued the De­part­ment of Health and Hu­man Ser­vices over the Af­ford­able Care Act’s re­quire­ment to pro­vide con­tra­cep­tion as part of health in­sur­ance cov­er­age for em­ploy­ees. The law in­cluded an opt-out pro­vi­sion, but the plain­tiffs, cit­ing the Re­li­gious Free­dom Restora­tion Act, said their ex­er­cise of re­li­gion was un­fairly bur­dened be­cause the ACA re­quired that they fill out a form or be sub­jected to mon­e­tary penal­ties. The Re­li­gious Free­dom and Restora­tion Act, a 1993 law signed by Pres­i­dent Bill Clin­ton, was in­tro­duced in the House by then-Rep. Charles E. Schumer (D-N.Y.) and in the Se­nate by then-Sen. Ed­ward M. Kennedy (D-Mass.).

A three-judge panel of the U.S. Court of Ap­peals for the Dis­trict of Columbia Cir­cuit re­jected that ar­gu­ment in 2014. The plain­tiffs tried to get a hear­ing by the full court the next year and failed again. Ka­vanaugh, a mem­ber of the court, filed a dis­sent to ex­plain why he would have per­mit­ted a broader hear­ing.

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 abor­tionin­duc­ing drugs that they were — as a re­li­gious mat­ter, ob­jected to.”

The is­sue at hand is Ka­vanaugh’s ref­er­ence to “abor­tion-in­duc­ing drugs.” A plain read­ing of his sen­tence, with its ref­er­ence to “they said,” sug­gests that he is merely re­flect­ing the plain­tiff’s ar­gu­ment. Har­ris’s de­ci­sion to snip those cru­cial words from her first post on the video is cer­tainly trou­bling.

But, as we noted, Har­ris is not back­ing down. “It had been orig­i­nally just edited for length like al­most all videos are, but we wanted to make sure that if there was any con­fu­sion, we posted the full video so peo­ple can see,” said spokes­woman Lily Adams. “Our point in the orig­i­nal tweet is un­changed, which is that he uses this term that is ex­tremely po­lit­i­cal and med­i­cally in­ac­cu­rate with no cri­tique or ef­fort to note any type of dis­agree­ment.”

Adams pointed to a num­ber of me­dia re­ports, in­clud­ing in The Wash­ing­ton Post, that high­lighted Ka­vanaugh’s use of the phrase “abor­tion-in­duc­ing drugs.” As read­ers know, just be­cause it’s in the main­stream me­dia doesn’t mean it’s cor­rect. (The brief men­tion in The Post, which said he “ap­peared to re­fer to birth con­trol as ‘abor­tionin­duc­ing drugs,’ ” was mostly about anti-Ka­vanaugh tweets about his com­ment.)

Adams also noted that the plain­tiffs in their briefs re­ferred to “abor­tion-in­duc­ing prod­ucts,” not drugs. Given that th­ese were com­ments made dur­ing a pub­lic hear­ing, we don’t think the dis­tinc­tion is es­pe­cially im­por­tant.

Since this was a live event, when peo­ple can stum­ble in their re­marks, we thought it would be worth­while to re­view Ka­vanaugh’s dis­sent. How did he re­fer to the is­sue then?

In his dis­sent, Ka­vanaugh does not re­fer to abor­tionin­duc­ing prod­ucts. (An­other dis­sent in the case did.) In­stead, he makes three ref­er­ences to abor­tion, four ref­er­ences to abor­ti­fa­cients, and 53 ref­er­ences to con­tra­cep­tives or con­tra­cep­tive.

For in­stance, in re­fer­ring to the plain­tiffs’ case, he writes, “They com­plain that sub­mit­ting the re­quired form con­tra­venes their re­li­gious be­liefs be­cause do­ing so, in their view, makes them com­plicit in pro­vid­ing cov­er­age for con­tra­cep­tives, in­clud­ing some that they be­lieve op­er­ate as abor­ti­fa­cients.” (At is­sue in par­tic­u­lar is the morn­ing-af­ter pill, or Plan B, which some be­lieve could thin the lin­ing of a uterus and thus in the­ory could de­stroy a fer­til­ized egg, though ev­i­dence of that is slim.)

That sounds rather sim­i­lar to his spo­ken tes­ti­mony: “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 abor­tionin­duc­ing drugs that they were — as a re­li­gious mat­ter, ob­jected to.”

When it comes to con­tra­cep­tion — which Har­ris and her col­leagues sug­gest Ka­vanaugh op­poses — he wrote that the gov­ern­ment ap­peared to have “a com­pelling in­ter­est in fa­cil­i­tat­ing women’s ac­cess to con­tra­cep­tion.” To al­le­vi­ate the cost to so­ci­ety of un­in­tended preg­nan­cies, “the Fed­eral Gov­ern­ment has long sought to re­duce the num­ber of un­in­tended preg­nan­cies, in­clud­ing through the Af­ford­able Care Act by mak­ing con­tra­cep­tives more cheaply and widely avail­able.” He added that a pre­vi­ous Supreme Court rul­ing “strongly sug­gests that the Gov­ern­ment has a com­pelling in­ter­est in fa­cil­i­tat­ing ac­cess to con­tra­cep­tion for the em­ploy­ees of th­ese re­li­gious or­ga­ni­za­tions.”

Again, this sounded sim­i­lar to the sec­ond part of Ka­vanaugh’s an­swer to Cruz: “The sec­ond ques­tion was, did the gov­ern­ment have a com­pelling in­ter­est none­the­less in pro­vid­ing the cov­er­age to the em­ploy­ees and ap­ply­ing the gov­ern­ing Supreme Court prece­dent . . . . I said that the an­swer to that was yes, the gov­ern­ment did have a com­pelling in­ter­est.”

When we pointed out the section of the dis­sent con­cern­ing con­tra­cep­tion, Adams coun­tered that Ka­vanagh ap­peared to strug­gle to say whether pre­vi­ous Supreme Court rul­ings were cor­rectly de­cided when the court said the gov­ern­ment could not pro­hibit ei­ther mar­ried or un­mar­ried peo­ple from us­ing con­tra­cep­tives. He in­stead re­ferred to pre­vi­ous state­ments made by Chief Jus­tice John G. Roberts Jr. and Jus­tice Sa­muel A. Al­ito Jr.: "That’s what they said.”

Adams chal­lenged The Fact Checker to ob­tain a state­ment from the White House that Ka­vanaugh be­lieves that the term “abor­tion-in­duc­ing drugs” is in­ac­cu­rate.

“Judge Ka­vanaugh was asked specif­i­cally about his dis­sent and cited the plain­tiffs’ po­si­tion. The fact that crit­ics re­moved the phrase ‘they said’ from his an­swer shows that they knew he was cit­ing the party’s opin­ion and were de­lib­er­ately try­ing to mis­lead the pub­lic,” said White House spokesman Raj Shah. “As Judge Ka­vanaugh’s opin­ion stated, based on the Supreme Court’s in­ter­pre­ta­tion of the Re­li­gious Free­dom and Restora­tion Act, it’s the court or a judge’s job to de­ter­mine ‘only the sin­cer­ity of a plain­tiff’s re­li­gious be­lief, not the cor­rect­ness or rea­son­able­ness of that re­li­gious be­lief.’ ”

More­over, in an­swer­ing ques­tions sub­mit­ted for the record af­ter the hear­ing, Ka­vanaugh said he was quot­ing the plain­tiffs’ po­si­tion when he used the term “abor­tionin­duc­ing drugs” and was not ex­press­ing an opin­ion in his use of the term.

The Pinoc­chio Test

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 “abor­tionin­duc­ing 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.

PHO­TOS BY MELINA MARA/THE WASH­ING­TON POST

Sen. Ka­mala D. Har­ris tweeted out a video that cut a key part of Ka­vanaugh’s state­ment. She later posted the full video but main­tains he “un­crit­i­cally” used a term that riles abor­tion rights ad­vo­cates.

Supreme Court nom­i­nee Brett M. Ka­vanaugh made com­ments about “abor­tion-in­duc­ing drugs” when dis­cussing a case brought by an an­tiabor­tion re­li­gious group chal­leng­ing Oba­macare rules.

The Fact Checker GLENN KESSLER

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