Tuesday, January 23, 2018
Politics

Politifact: Pelosi misspeaks in attack on Supreme Court

The statement

The U.S. Supreme Court is "five guys who start determining what contraceptions are legal."

Nancy Pelosi, House minority leader, at a July 10 press conference

The ruling

Fox News Channel host Megyn Kelly took the media to task for not immediately shooting down Pelosi's assertion.

"I've seen the media rush to clarify Ms. Pelosi's misleading remarks … Oh, no, I have seen none of that, except on Fox News," Kelly said sarcastically. "When you've got somebody in such a powerful a position as Nancy Pelosi, in a position to influence so many people on such a platform, come out and tell blatant falsehoods, there should be some fact-checking. Where is PolitiFact on that?"

Well, here we are.

We can eliminate any reader suspense by sharing the response Pelosi's office sent after we inquired: "She misspoke," spokesman Drew Hammill acknowledged. "Obviously the impact of the court's decision is not to make these four contraceptive methods illegal — i.e., no longer allowed to be sold."

We asked legal experts whether it was plausible to think that the Supreme Court would actually make certain kinds of contraceptives illegal, as Pelosi's now-disowned comment suggested. The experts agreed that the scenario was farfetched.

"There is no reason to think the Court will ban any contraceptives," said Susan Bloch, a constitutional law professor at Georgetown University. "Hobby Lobby involved the question of whether a company can, for religious reasons, refuse to pay for health insurance that covers certain contraceptives. Hobby Lobby does not relate to the legality of contraceptives at all."

Kurt Lash, a University of Illinois law professor, agreed. Pelosi's original comment, he said, suggested "either that the Supreme Court has started 'determining what contraceptions are legal,' or that recent decisions suggest that a majority might be heading in that direction. Neither is true, or even plausible."

As evidence, Lash cited solid legal precedent in favor of making contraceptives legal. Regardless of the court's recent jurisprudence, Lash said, "it is — and will be — 'legal' for employees to obtain contraceptives on their own. Employees have that right as a matter of constitutional law under the Supreme Court's 1965 decision in Griswold vs. Connecticut, a case no one is challenging anywhere in the country and which is not implicated in any way in the ACA litigation."

In fact, he added, "even if a majority of the Supreme Court reversed Griswold — something that will never happen under the Roberts Court — this still would not make contraceptives 'illegal.' At most, it would leave the matter to the states to decide for themselves. And every state allows the distribution of contraceptives and has done so for decades, even prior to the Court's 1965 decision in Griswold."

We rate Pelosi's claim False.

Edited for print. Read the full version at PolitiFact.com.

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