Brett Kavanaugh’s views on birth control drew scrutiny in Washington on Thursday as abortion rights advocates charged that the Supreme Court nominee had referred to contraceptives as “abortion-inducing drugs.”
The Brett Kavanaugh nomination
Supporters of Kavanaugh were quick to respond, saying he was summarizing the argument of a religious group challenging the Affordable Care Act’s so-called contraceptive mandate.
The controversy came as Kavanaugh was discussing a case involving the Religious Freedom Restoration Act to the Affordable Care Act, or Obamacare. The government’s regulations included a requirement that all employers provide their employees with health insurance that covers all formed of FDA approved birth control including birth control pills, IUD’s and horomonal injections.
The challenge was brought by a religious group that argued it was being forced to provide health coverage for contraceptives despite its religious objections. The group, Priests for Life, said the “religious accommodation” provided by the Department of Health and Human Services was insufficient. Complying with the accommodation, Priests for Life said, made the group complicit in something that went against its religious beliefs.
Kavanaugh, in dissent, expressed sympathy for the religious challengers.
Sen. Ted Cruz, a Texas Republican, on Thursday asked Kavanaugh about the case, that came before him at the DC Circuit.
“That was a group that was being forced to provide 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 said.
“It was a technical matter of filling out a form in that case,” he added. “In that case, 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.”
None of the senators present at the hearing questioned the phrase at the time.
In a press release, however, Planned Parenthood drew attention to the exchange but left out the words “they said,” making it appear as if Kavanaugh was speaking for himself.
Beth Lynk, a spokeswoman for Planned Parenthood Federation of America, acknowledged the error, but still took issue with the fact that she said Kavanaugh had mischaracterized the case and also used a controversial term used by groups opposed to abortion.
“The argument for the lawyers of Priests for Life was that they objected to all birth control,” she said. “In Kavanaugh’s testimony his description of their objection characterized all types of birth control as ‘abortion inducing drugs.’”
“In reaching for a term to describe all types of birth control, the word he chose was ‘abortion inducing drugs,”’ she said.
Planned Parenthood and groups like the American College of Obstetricians and dispute the concept and phrasing that an IUD induces abortion because it doesn’t allow a fertilized egg to implant.
“Saying ‘abortion-inducing drugs’ to describe contraception is straight out of the anti-choice, anti-science phrase book used to restrict women’s access to essential health care,” the Center for Reproductive Rights said on Twitter Thursday.
Travis Lenker, a former Kavanaugh clerk who has attended the hearings this week, defended the Supreme Court nominee, saying his language was an accurate summation of the group’s position.
“Judge Kavanaugh was plainly describing the parties’ arguments in the case, not stating his own views,” Lenker said. “That’s why he used the words ‘they said’ words that are being conveniently omitted from the quotation lifted out of context.”
Kavanaugh used similar language to his Thursday answer to describe the Priests for Life position in his 2015 dissent.
“By regulation, that insurance must cover all FDA-approved contraceptives, including certain methods of birth control that, some believe, operate as abortifacients and result in the destruction of embryos,” he wrote then.
In a line of his dissent that has attracted some conservative criticism, however, Kavanaugh also wrote that Supreme Court precedent “strongly suggests that the government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.”
Kavanaugh, 53, was nominated to the Supreme Court by Trump in July to replaced retired Justice Anthony Kennedy, who has been the swing vote on abortion-related cases in the past. If confirmed, he could establish a conservative majority on the nation’s highest court for decades.
CNN’s Clare Foran and Joan Biskupic contributed to this report.