Harris, who is widely considered a 2020 Democratic presidential contender, accused Kavanaugh of signaling during Senate confirmation hearings last week that he would be "going after birth control." The Republican nominee, she tweeted, had been specifically chosen for his willingness to snatch up "a woman's constitutionally protected right to make her own health care decisions."
"Make no mistake," she warned, "this is about punishing women."
But the clip Harris shared as confirmation of this secret plot was deceptively edited. Asked about a case involving religious objections to the Obamacare contraception mandate, the video showed Kavanaugh responding that "filling out the form would make [Priests for Life] complicit in the provision of the abortion-inducing drugs that they were, as a religious matter, objected to."
Kavanaugh's use of the phrase abortion-inducing drugs is what's at issue here. The contraception mandate said that employer health-insurance plans must cover birth control, not abortion pills. Harris called Kavanaugh's answer a "dog whistle" that showed he was against not just abortion but also birth control.
Other Democrats echoed her. "This is a red-alarm moment," tweeted Oregon Sen. Jeff Merkley. "If you didn't believe it before, believe it now – a woman's constitutional right to abortion AND birth control are both 100% at stake." U.S. House candidate Alexandria Ocasio-Cortez tweeted: "Brett Kavanaugh doesn't even know what birth control IS. He doesn't deserve to pass a 7th grade health class, let alone a Supreme Court confirmation…. We must #CancelKavanaugh."
But here's what Harris left off the start of the abortion-inducing drugs sentence in her video clip: They said. Kavanaugh's full sentence has been that "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, objecting to."
In other words, Kavanaugh was characterizing the positions of Priests for Life, plaintiffs in the lawsuit which he had specifically been asked about.
In 2015, Kavanaugh had dissented from other U.S. Court of Appeals for the District of Columbia Circuit judges, who had denied Priests for Life's request for full-court hearing after a three-judge panel rejected their claims. In his dissent, Kavanaugh writes that the Supreme Court's ruling in the Hobby Lobby case "strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations." However, "the Government need not—and therefore under RFRA [the Religious Freedom Restoration Act] may not—pursue its compelling interest in facilitating access to contraception by requiring religious nonprofit organizations to submit the form required by current federal regulations."
"One final note for clarity," Kavanaugh added:
The Government may of course continue to require the religious organizations' insurers to provide contraceptive coverage to the religious organizations' employees, even if the religious organizations object. As Judge Flaum correctly explained, "RFRA does not authorize religious organizations to dictate the independent actions of third-parties, even if the organization sincerely disagrees with them."
When called out about the shortened clip, Harris pressed on with original criticism. "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," she tweeted. This is a pattern with Harris—when called out on bad behavior, she doubles down. (For more Reason coverage of Harris, see here, here, here, here, and here.)
In any event, it looks like we're gearing up for a full rehash of the "War on Women" rhetoric we saw in the late Obama years. And so far, it's promising to be every bit as dumb.
Photo Credit: Erin Scott/Polaris/Newscom