Bench Memos

Law & the Courts

Contraception Confusion: Judge Kavanaugh and Priests for Life

The Huffington Post reported today that Supreme Court nominee Brett Kavanaugh described contraceptives as “abortion-inducing drugs” during his confirmation hearing yesterday when he answered questions from Senator Ted Cruz about his dissent from denial of rehearing en banc in the Priests for Life v. HHS case.  This is a distortion of Kavanaugh’s testimony, as the nominee was simply describing the litigation position that the plaintiffs had taken in the case.

In Priests for Life v. HHS, various Catholic nonprofits, including Catholic hospitals, clinics, universities, schools, and social services, challenged the contraceptive mandate provision of the Affordable Care Act on religious liberty grounds.

According to the plaintiffs’ brief in the case, they offered health care coverage to their employeesthat excluded coverage for “abortion-inducing products, contraception [except when used for noncontraceptive purposes], sterilization, or related counseling.”

Although the contraceptive mandate contained an opt-out provision, the plaintiffs argued that under the Religious Freedom Restoration Act, it unlawfully burdened their exercise of religion because it required them to submit a form or otherwise be subjected to monetary penalties.

A three-judge panel for the D.C. Circuit ruled against the plaintiffs.  The plaintiffs sought rehearing en banc from the full D.C. Circuit, but rehearing was denied.  Kavanaugh wrote a dissent from the denial of rehearing en banc, arguing that the HHS mandate would “substantially burden the religious organizations’ exercise of religion” and that “requiring the religious organizations to submit this form is not the Government’s least restrictive means of furthering its interest in facilitating access to contraception for the organizations’ employees.”

During the nomination hearing yesterday, Senator Cruz asked Kavanaugh to testify about the Priests for Life case and his dissent from denial of rehearing en banc.  In response to Cruz’s question, Kavanaugh said:

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. It was a technical matter of filling out a form in that case. They said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they, as a religious matter, objected to.

It’s clear that in his testimony to Senator Cruz, Kavanaugh was repeating the words that the plaintiffs had used in their own briefs.   As Judge Cornelia Pillard, an Obama appointee, explained in her majority opinion for the three-judge panel in the 2014 case:

It is undisputed that Plaintiffs all sincerely believe that life begins at conception and that contraception is contrary to Catholic tenets. Priests for Life, for example, was founded to spread the Gospel of Life, which “affirms and promotes the culture of life and actively opposes and rejects the culture of death.” Pls.’ Br. 11. Catholic doctrine prohibits “impermissible cooperation with evil,” and thus opposes providing access to “contraceptives, sterilization, and abortion-inducing products,” which the Church views as “immoral regardless of their cost.” Id. at 12.

The plaintiffs’ brief in the case (which, again, was quoted in both the majority opinion and Kavanaugh’s dissent from denial of rehearing en banc) makes clear that the plaintiffs objected to the provision of health care coverage for several different categories of care, including prescription drug coverage for both contraceptives and what the plaintiffs described as “abortion-inducing products.”

Kavanaugh did what judges routinely do when they discuss cases: speak in terms of what the plaintiffs allege.  To say that because Kavanaugh accurately characterized the plaintiffs’ position he himself believes that contraceptives areabortion-inducing drugs demonstrates a complete misunderstanding of the Priests for Life litigation, as well as Kavanaugh’s testimony yesterday.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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