Sen. Patty Murray (D-WA) on Wednesday denounced the threat U.S. Supreme Court nominee Brett Kavanaugh could present to reproductive health-care access—including contraception—from the U.S. Senate floor.
Murray recounted the story of a college friend who became pregnant after surviving a sexual assault. ”She didn’t know where to get a safe abortion and she wasn’t wealthy so she knew she couldn’t afford it either. The botched procedure she ended up having left her unable to bear children,” said Murray, the ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee. “I saw my friend hurt and frightened, alone and unable to get the care she needed because someone else’s beliefs mattered more under our laws than her health and her future.”
“That impacted me a lot, and has stayed with me to this day,” said Murray, who told the stories of other women who had abortions after the procedure became legal. “Roe and the rulings that have upheld made clear that what women across the country know at their core to be true, that reproductive freedom is essential to a woman’s ability to control her future, to plan her family, and to contribute to her community as she may choose to.”
“The progress women have made and the prospect of future progress today truly hangs in the balance,” said Murray. “Today I want to not only emphasize how real this threat is, but paint a picture of how much more unequal life would be for women in the United States of America should Judge Kavanaugh be confirmed and add a fifth vote on the Supreme Court for overturning Roe v. Wade and roll back reproductive rights women have had for over four decades.”
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Murray noted that President Trump vowed on the campaign trail to appoint justices who would vote to overturn Roe v. Wade and that his administration has waged a war on reproductive rights. “Anyone who says President Trump isn’t applying an anti-choice litmus test in this nomination or thinks it’s unclear where President Trump’s allegiance lies when it comes to women’s health should take a look at what he’s said and done.”
Kavanaugh’s record on reproductive rights, as Murray explained, includes a ruling in which he blocked a pregnant 17-year old from accessing abortion care despite a Texas court granting the minor the right to have the procedure. In that case, Kavanaugh sided with Trump administration lawyers who argued that releasing the unaccompanied immigrant minor in the custody of the Office of Refugee Resettlement would “facilitate” access to a procedure to which the administration was opposed—legal abortion. Kavanaugh’s decision was ultimately reversed by the full panel of D.C. Circuit judges, but if it had been allowed to take effect it would have delayed the minor’s procedure past 20 weeks of pregnancy, outside the timeframe of legal abortion in Texas, where she was in custody.
The ruling was a precise undermining of abortion rights by Kavanaugh without going outside the bounds of abortion rights jurisprudence. Kavanaugh manipulated the law to get to a desired outcome—in this case, blocking access to legal abortion and directing a patient to continue a pregnancy against her will.
Murray called attention to a ruling made by Kavanaugh against the Affordable Care Act’s (ACA) birth control benefit, which allows women to receive contraception care and counseling without co-pays. The case involved Priests for Life, a nonprofit anti-choice advocacy organization that had sued the Obama administration, challenging its process for accommodating religious objections to the birth control benefit. The D.C. Circuit twice ruled against claims by Priests for Life that the accommodation process, which included filling out a form identifying the existence of an employer’s religious objection and with information related to their insurance carrier, was a substantial burden on their religious rights.
Kavanaugh dissented, arguing Priests for Life had made enough of a case that the accommodation was a burden. To support his conclusion, Kavanaugh turned to the concurring opinion of then-Tenth Circuit Court of Appeals Judge Neil Gorsuch in a contraception challenge, Hobby Lobby v. Burwell. In Hobby Lobby, the Supreme Court would ultimately adopt much of Gorsuch’s analysis and find that some for-profit businesses could raise religious objections to the ACA’s birth control benefit.
“Judge Gorsuch has explained well the complicity issue that arises in these circumstances: ‘All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. [Plaintiffs] are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case,’” Kavanaugh wrote before explaining why completing a form was a substantial burden on corporate religious rights.
It would take the November election, an executive order from Trump, and a few new rules from the U.S. Department of Health and Human Services purporting to absolve businesses of their obligation to comply with the birth control benefit to bring the law in line with the vision Kavanaugh articulated in that dissent.
“If an employer tries to deny his employee affordable birth control because he thinks he knows better, or if a politicized federal agency is detaining a young woman in hopes it can impose its beliefs on her, or if a woman does not want to carry her rapist’s child to term, our nation must affirm her autonomy because our laws are her last place of resort,” said Murray. “But under Judge Kavanaugh’s vision for our country based on his assessments of traditions and conscience, women wouldn’t have that last resort. Instead, a woman’s ability to get reproductive health care would overwhelmingly depend … on whether she could afford it, and therefore disproportionately on her race and zip code as well.”
“The only way to stop this is for people to take action,” Murray said, asking citizens to share stories of why reproductive rights matter and to register to vote. She pointed to a groundswell of grassroots support that helped block congressional Republicans from gutting the ACA, also known as Obamacare, and said she hoped a similar wave of support would rise against Kavanaugh’s nomination.