Melissa Joskow / Media Matters

After Supreme Court nominee Brett Kavanaugh’s rocky confirmation hearings, fact-checkers from PolitiFact and The Washington Post each chose to rebut comments from Sen. Kamala Harris (D-CA) concerning Kavanaugh’s troubling record on contraceptive access. But rather than focus on the substance of Kavanaugh’s rulings, fact-checkers argued about Harris’ semantics, enabling right-wing media to change the conversation and distract from the serious threat that Kavanaugh poses to reproductive rights.

During Kavanaugh’s confirmation hearings, there were many notable exchanges revealing that the Federalist Society darling has not only made some deeply concerning decisions as a judge, but also potentially lied under oath several times. Fact-checkers seized on an exchange in which Kavanaugh used the term “abortion-inducing drugs” while describing his dissent in a case called Priests for Life v. U.S. Department of Health & Human Services. This is a well-known (but inaccurate) anti-abortion term, meant to suggest that contraceptives induce abortion, that abortion opponents use to limit access or even ban their use.

Recognizing this, Sen. Kamala Harris (D-CA) tweeted a video of Kavanaugh’s answer about the Priests for Life case, warning that “Kavanaugh chooses his words very carefully, and this is a dog whistle for going after birth control.” In response, right-wing media attacked Harris, claiming that she took Kavanaugh’s comments out of context, and argued that he used the term only to summarize the views of the anti-abortion plaintiffs in the case, Priests for Life.

On September 10, PolitiFact rated Harris’ statement “false,” writing that the tweet “failed to include a crucial qualifier: ‘They said.’ In fact, he was citing the definition of the religious group Priests for Life.” The piece noted that Kavanaugh “has not expressed his personal view” on the matter -- despite a plethora of evidence that Kavanaugh would be hostile to abortion rights. The Washington Post Fact Checker similarly awarded Harris “Four Pinocchios” because there was “no acknowledgment by Harris that the original tweet was misleading” and suggested that she and other Democrats “drop this talking point.” Kavanaugh himself later affirmed that he had not been “expressing an opinion” and he used the term “only when recount[ing] the plaintiffs’ own assertions.”  However, as Imani Gandy wrote for Rewire.News, the fixation on fact-checking Harris’ semantics missed the larger issue: Kavanaugh’s decision in that case -- the actual substance of Harris’ argument -- was “utterly bonkers.” The majority decided that requiring Priests for Life to sign a form opting out of providing contraceptive coverage did “not impose a substantial burden on plaintiffs’ religious exercise.” However, as Gandy argued, Kavanaugh’s dissent strongly implies that he would “allow evangelicals, by claiming a sincerely held religious belief, to be exempted from laws intended to provide people with contraceptive access through their employers, even when following those laws would require said employers to do nothing more than sign a piece of paper.”

Anti-abortion organizations and media consistently leverage misinformation and intentional manipulation of the facts to attack abortion access and advance their own agendas. And the anti-abortion movement has never been better funded, better organized, or more savvy in its political machinations. In a February 12 article, PolitiFact’s Angie Drobnic Holan wrote that the organization aimed to “present the true facts, unaffected by agenda or biases.” But how should fact-checkers respond when the subject of a fact check is explicitly operating in bad faith to promote an agenda? That’s the issue fact-checkers must contend with as anti-abortion extremists and their right-wing media allies continue trying to control the narrative about reproductive rights.

Fact-checking is based on juxtaposition: comparing fact with non-fact, with the assumption that the objective truth will become clear as a result. In comparison, anti-abortion misinformation is built on equal parts obfuscation and subtlety. For example, take the language used by Kavanaugh and other anti-choice figures to discuss their stances on abortion rights. As Irin Carmon explained, rather than explicitly state their views, nominees and politicians will often use “obfuscating code words around abortion,” such as calling Roe v. Wade “settled law” to signal their opposition to reproductive rights while saying “as little as possible about abortion” in order “not to awaken a public that to this day is overwhelmingly supportive of Roe v. Wade.”

Just as the anti-abortion movement has relied on code words to obscure its true purpose, right-wing media have spent years haranguing fact-checkers and mainstream media alike for their supposed bias against conservative views. This is exemplified by current right-wing attacks on platforms like Facebook and Google, which conservatives inaccurately argue have “censored” them -- a claim used widely in anti-abortion circles, as well. To avoid perceptions of bias, platforms have bent over backward to accommodate conservatives -- changing algorithms, installing partisan fact-checkers, and even conducting a so-called “conservative bias review.”

We see the same troubling dynamic at play in how fact-checkers handle abortion-related claims. Anti-abortion media have accused fact-checkers of exhibiting “pro-abortion bias” for years, but they celebrated the fact checks of Harris’ statement -- even praising PolitiFact’s decision to issue a correction for repeating “uncritically a Democratic talking point, that Kavanaugh mentioned birth control by using the term abortion-inducing drugs.”

In a 2013 article, Washington Post fact-checker Glenn Kessler noted that the paper “always ventures into questions about abortion rhetoric with trepidation” because “virtually no one is ever happy with our rulings, no matter how much we try to just stick with the facts.” However, this begs the question: What do you do if one side’s “facts” are borne of an intentionally deceptive agenda? As Esquire concluded, although Harris “probably should have used the whole quote” (and she did later link to the whole exchange on Twitter), PolitiFact’s ruling suggests that “it's best for us all to be naive and stupid rather than jumping to obvious conclusions” by pretending “we aren't sure about what Brett Kavanaugh believes about ‘abortion-inducing’ drugs.’”

Kavanaugh has clearly signaled that if confirmed, he’d be a threat to abortion rights -- gaslighting claims by right-wing media to the contrary. By choosing to debate Harris’ semantics rather than engage in the substance of Kavanaugh’s decision, fact-checkers avoided hard questions and aided anti-choice media in the process.