May 09, 2022 11:57 AM UTC

Cory Gardner and Birth Control: Whose "Pants on Fire" Now?

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• by: Colorado Pols

Late in the 2014 campaign for U.S. Senate in Colorado, the National Abortion Rights Action League’s (NARAL) Colorado chapter launched the ad you can see above, warning viewers that if Cory Gardner became Colorado’s next U.S. Senator, “Better stock up on condoms.” This ad was universally panned by fact-checkers and the local media, coming after Gardner had spent months trying to re-invent himself on the issue of abortion and even having embraced a proposal for over-the-counter birth control as a rhetorical foil.

In Politifact’s 2014 piece denouncing this ad as “Pants on Fire” false, they acknowledged the underlying issue had some legitimacy, but focused on the type of birth control mentioned in the ad (condoms) as misleading:

Opponents of personhood legislation say that giving a fertilized egg all the rights of person could make illegal several FDA-approved contraceptives, such as the pill and intrauterine devices, or IUDs. Anti-abortion groups successfully petitioned to get personhood measures on the Colorado ballot in 2008 and 2010. Both times it was rejected by more than 70 percent of voters…

Gardner’s critics may have a point that some forms of birth control could be outlawed if personhood measures became law — but that shouldn’t affect condoms. That’s because condoms prevent sperm from reaching the egg in the first place. No fertilization ever takes place.

…Doug Gordon, a spokesman for NARAL Pro-Choice Colorado, told our friends at FactCheck.org that “we’re not saying he is banning condoms. We are saying if Gardner starts limiting other forms of birth control, you better stock up on condoms because there will be so much demand for them — since Gardner wants to ban other forms of birth control.” [Pols emphasis]

In the end and not only as a result of this one ad, it was the general consensus of the political chattering class that Gardner’s opponents had severely overplayed the issue of abortion in the 2014 campaign, giving Gardner the headroom to successfully make the case that the dire warnings about his views on abortion were overblown. In particular by accusing Gardner of wanting to “ban birth control,” the conventional wisdom held, Democrats had argued past the point of believability.

Eight years later, as Forbes reported this weekend, the unbelievable is now looming on the visible horizon:

According to the draft opinion—which is from February and is not final—the Supreme Court is poised to strike down Roe entirely, with Justice Samuel Alito saying there is no right to privacy in the Constitution that would justify legalizing abortion.

Legal experts predict that ruling, if it ends up being the court’s final decision, could threaten the court’s 1965 ruling in Griswold v. Connecticut, which established the right to privacy and legalized birth control (for married couples only at the time), because the court can use its ruling against Roe to then overturn Griswold based on its reasoning.

Already in the wake of the leak of the Supreme Court’s draft decision overturning Roe v. Wade, we’re seeing Republicans outwardly critical of contraception in a way that would have given Cory Gardner serious heartburn in 2014. The governor of Mississippi won’t rule out a ban on contraception, a U.S. Senate candidate in Arizona wants states to have the option to ban contraception, and Sen. Marsha Blackburn of Tennessee dissed the Griswold v. Connecticut ruling that established contraception rights on similar grounds to Roe’s right to privacy during Ketanji Brown Jackson’s confirmation hearing.

If Cory Gardner was still serving in the U.S. Senate, we suspect he would be trying right now to assure Colorado voters that contraception isn’t the target while the three Supreme Court Justice Gardner voted into power during his single term in the U.S. Senate carry out Gardner’s longstanding (and never once disavowed) goal of having Roe overturned. After all, this is a state that has proven at the polls, Gardner perhaps the sole case notwithstanding, that it won’t tolerate socially regressive wedge-issue politics.

But that’s not Cory Gardner’s job anymore. On abortion, Gardner has no honor left to salvage. The worst-case scenario, both for Roe and for Griswold, still may not come to pass, but no one can argue today as they did on Gardner’s behalf in 2014 that it’s impossible.

It was a case of even the fact-checkers deluding themselves.