“And he has cavalierly referred to contraceptive use as ‘the wrongdoing of others.’”

–Kaine, statement, March 29, 2017

The nomination of Judge Neil Gorsuch, President Trump’s pick for the Supreme Court, is expected to reach the Senate floor soon. But with growing opposition from Senate Democrats, Gorsuch may fall short of votes needed for a smooth passage through the Senate.

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In a public statement and a separate, six-page essay explaining his opposition to Gorsuch, Sen. Tim Kaine argued the judge’s use of the phrase “wrongdoing of others” referred to the use of contraceptives.

Kaine’s tweet distilling his argument sparked outrage from conservatives, who criticized the senator for attributing “wrongdoing of others” to Gorsuch’s description of women using contraceptives.

But it’s a lot more complicated than that tweet, and Kaine has described his argument in length. We’ll explore that here.

The Facts

Kaine is quoting from Gorsuch’s concurring opinion in the case of Hobby Lobby, an arts-and-crafts chain. The case involved the owners’ objection to providing birth control for their employees after the Affordable Care Act mandated they do so.

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It’s important to note the difference as to what contraceptives the Hobby Lobby case entails. We’ve covered this in depth. Before the ACA was enacted, Hobby Lobby actually had provided coverage for all 20 FDA-approved contraceptive procedures required under the law. After the law was passed, the owners decided to object to four of the contraceptives (“morning-after” pills and intrauterine devices, or IUDs) on religious grounds. The company’s founder, David Green, said the family believed covering the four contraceptives “would violate their deeply held religious belief.” So the family’s challenge to the law did not include other forms of contraception, like the birth-control pill.

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Gorsuch, as a judge on the U.S. Court of Appeals for the 10th Circuit, joined in the majority opinion that closely held, for-profit corporations with religious owners were not required to pay for contraceptive coverage under the health law. The Supreme Court, in a narrow 5-to-4 ruling, affirmed that view. (The majority opinion, written by Justice Samuel Alito, observed in a footnote that the owners regarded these four methods as “causing abortions” but noted that “federal regulations, which define pregnancy as beginning at implantation, do not so classify them.”)

As we have noted before, Democrats have a habit of suggesting the ruling in Hobby Lobby actually affected all contraceptives, rather than the four in question. The Green family said they had no moral objection to 16 of the 20 contraceptives required in the law.

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Gorsuch began his concurring opinion with this paragraph, and Kaine highlighted the first two sentences (in bold) in his explanation:

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“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. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case.”

The first two sentences may read as though Gorsuch is calling the use of contraceptives as a “wrongdoing.” But the rest of the paragraph makes it clear that he is referring to the Green family’s belief that, based on their religion, the use of morning-after pills and IUDs is a “wrongful conduct.”

Throughout the rest of the opinion, Gorsuch refers to the family’s religious conviction on the use of contraceptives: “As the Greens explain in their complaint, the ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong. … No one disputes that the Greens’ religion teaches them that the use of such drugs or devices is gravely wrong.”

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Gorsuch added: “No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs.”

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Kaine personally wrote a lengthy explanation of his legal reasoning to The Fact Checker, which you can read in full here.

Kaine said he was making a legal interpretation of the language Gorsuch used in his opinion. That Gorsuch decided to write a concurring opinion in the majority decision meant the judge wanted to emphasize a point that he found particularly important, according to Kaine. The Hobby Lobby case wasn’t about the perceived moral wrongness of contraceptives, but Kaine said he believes Gorsuch, consciously or not, “tips his hand in cases dealing with women’s health care, including contraception” with the use of the phrase. Kaine said:

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“I believe the sharp contrast in language between the actual legal question—is there a conflict between the owners’ religious beliefs and the law—and Judge Gorsuch’s oracular description of the case is very telling. The legal issue has nothing to do with ‘the wrongdoing of others’ and Judge Gorsuch gratuitously injects that into the case. His decision to write this concurrence tells you something about his philosophy. His choice to make it about ‘complicity’ and ‘the wrongdoing of others’ rather than just about the clash between the owners’ views and the statute is revelatory of his thinking about the topic. And his universalizing of the question—’All of us’ is twice repeated—also shows that he is going well beyond the narrow role of resolving a straightforward legal dispute.”

We asked whether Kaine is referring to all forms of contraceptive, or the four identified in the Hobby Lobby ruling. Kaine responded that Gorsuch did not word his concurring opinion narrowly to apply just to the four: “Judge Gorsuch could have introduced his concurrence in the narrow way favored by the majority and said something like, ‘Can the Green family maintain suit under RFRA against an ACA mandate requiring their company, in opposition to their religious beliefs, to provide health coverage for certain forms of birth control?’ He chose to greatly broaden the question to be about ‘all of us’ and our ‘complicity’ in ‘the wrongdoing of others.'”

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What, exactly, is Gorsuch’s view of the use of and right to contraceptives?

Unlike the conservative justices currently on the court, during his confirmation hearing Gorsuch did not say he agreed with the Supreme Court’s 1965 ruling in Griswold v. Connecticut, which under the right to privacy nullified a law prohibiting the use of contraceptives, setting an important precedent for Roe v. Wade. The Griswold decision effectively found that a married couple has the constitutional right to privacy to choose to use contraception, and hasn’t been a very controversial decision.

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Justices John Roberts, Samuel Alito, Anthony Kennedy and Clarence Thomas said they agreed with the Griswold decision. Thomas said he had “no quarrel” with Griswold. Roberts said: “I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that.”

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However, the New Yorker in 2012 noted that Republican support for Griswold isn’t a given anymore, amid a new push to roll back the constitutional right to privacy. And in his confirmation hearing, Gorsuch did not clearly state he agreed with the decision. See this exchange:

Sen. Richard Blumenthal (D-Conn.): “Let me invoke your beliefs as a commentator. Do you believe it was the right result, based on your understanding of law — not your personal beliefs about whether contraceptives are a good thing or a bad thing, but your beliefs about the constitutional underpinning, the right to privacy, the Fourth Amendment, substantive due process, underpinning of Griswold versus Connecticut, was it the right result?” Gorsuch: “Senator, I’ve consistently — I’m not picking out Griswold or any other particular case — I’ve drawn a line that I think is required of a good judge to be fair and to respect the separation of powers, without respect to precedent. A precedent of the United States Supreme Court, as we were talking with Senator Flake, they’re all precedents. They all deserve respect of a judge. […] I have said, Senator, that, with this particular precedent we’re talking about, that it’s over 50 years old — weighty factor; that the reliance interests around it are many and great. I have said that it has been repeatedly reaffirmed by the United States Supreme Court. I’ve said that I cannot imagine a state actually legislating in this area. And I have said that I cannot imagine the Supreme Court taking someone wishing to challenge that precedent seriously. I don’t know how much more clear I could be to you, Senator.”

Later, Blumenthal tried again:

Blumenthal: “You’re unwilling to say that. And you’re unwilling to say, as Chief Justice Roberts did about Griswold, I agree with the Griswold court’s conclusion, that marital privacy extends to contraception and availability of that.” Gorsuch: “Respectfully, Senator, I think we’re splitting hairs. I really do because I have told you quite clearly that both of those precedents are in the realm of 50 years old, that have serious reliance interests around them, that they’ve been repeatedly reaffirmed. And Senator, what I’ve tried to do with respect to all precedents is treat them equally, in my presentation before you. Because as a judge, I come at them equally. In my line of work, a precedent is a heavy, a weighty thing. And it deserves respect as precedent, as part of our history. And … Blumenthal: “With all due respect, Your Honor, we’re doing more than splitting hairs here, because words matter. And the words of Chief Justice Roberts and Justice Alito were different than yours. Asking you to agree that these results were correct, I think is a relevant and important question. And your declining to do so — I respect your reasons, but I think that it speaks volumes, with all due respect.” Gorsuch: “Well, let me try one more — this way, Senator, for you. Maybe this will help. The way I look at it is, I don’t come at these issues fresh. It’s not whether I agree or disagree with any particular precedent. That would be an act of hubris. Because a precedent, once it’s decided, it carries far more weight than what I personally think.”

The Bottom Line

Kaine shouldn’t assume that one tweet will capture the pages and pages of nuance and argument that he’s set forth. All we had to do was look at Kaine’s tweet and search the phrase “wrongdoing of others” in Gorsuch’s opinion in the Hobby Lobby case to find that the judge was not directly referring to women’s right to use contraceptives. Gorsuch is no pink-hat donning marcher for women’s reproductive rights, but the tweet is in no way an accurate portrayal of his concurring opinion in the Hobby Lobby case. The tweet on its own would have received at least Three or Four Pinocchios, as it takes Gorsuch’s words way out of context.

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However, Kaine has issued a statement and a six-page explanation that he released publicly that supplement the tweet. Separately, he provided a nearly 1,000-word legal explanation that we linked above. When you dig beyond the 140 characters, it becomes clear that Kaine is making an interpretation of Gorsuch’s phrasing, and arguing why he interprets it as such. We will not rate this claim, as we do not fact-check opinion, but certainly readers can judge for themselves whether Kaine’s interpretation goes too far.

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