Jurisprudence

Susan Collins Could Save Roe v. Wade

She won’t.

Sen. Susan Collins talks with reporters in the Capitol’s Senate subway.
Sen. Susan Collins talks with reporters in the Capitol’s Senate subway before the Senate policy luncheons on June 19.
Tom Williams/CQ Roll Call

Progressives worried about losing Supreme Court protections for voting rights, reproductive rights, LGBTQ equality, affirmative action, and a whole lot more are now turning hopeful eyes to Susan Collins. The Republican senator from Maine, who represents the best hope of crossing party lines to vote with Democrats to block a Donald Trump nominee eager to overturn Roe v. Wade, spent some time on Sunday positioning herself as a potential savior for the right to choose. Mathematically speaking, she is correct: Her one vote can save reproductive freedom for the foreseeable future. The question is whether she understands the scope of that power. All available evidence suggests she does not.

Appearing on ABC’s This Week, for instance, Collins told Martha Raddatz:

I’m going to have an in-depth discussion with the nominee and I believe very much that Roe v. Wade is settled law, as it has been described by Chief Justice Roberts. It has been established as a constitutional right for … 45 years and was reaffirmed 26 years ago.

Here, Collins posits a world of binary choices that bears no resemblance to what Donald Trump’s nominee will be facing. Unless she is willing to say outright that she will vote against every one of the 25 names on Trump’s short list to replace Anthony Kennedy (or the four rumored to be on the shorter list), her pledge to ask about stare decisis is not a pledge to save abortion rights.

Why is that? For one thing, because Collins, in an interview the same day, indicated that her own litmus test for saving Roe hinged on whether a justice believed in overturning “settled law.” As she explained to CNN’s Jake Tapper, she questioned Neil Gorsuch about his views on precedent before voting for him, and “he pointed out to me that he is a co-author of a whole book on precedent … [He] understands how important a principle that is in our judicial system.” Collins said this four days after Gorsuch had voted to overrule a 41-year-old old precedent, Abood v. Detroit Board of Education. Even so, she declared that she doesn’t think Gorsuch or Chief Justice John Roberts would vote to overturn Roe, a preposterous claim that insults her constituents’ intelligence.

The other thing Collins isn’t saying is that Donald Trump ran for office on the pledge that each of his nominees would represent a vote to overturn Roe. As he told Chris Wallace during the 2016 campaign, “If we put another two or perhaps three justices on, that’s really what’s going to be—[overturning Roe] will happen and that will happen automatically in my opinion because I am putting pro-life justices on the court.” This past weekend, Trump indicated he would “probably not” ask potential nominees whether they will overturn Roe, but also noted, in case nobody understood, that when his new justice is seated, “Maybe someday it will be to the states.” This is Trump telling Collins that he has a litmus test and asking what she plans to do about it.

The other reason Collins’ pledge to ask about stare decisis is useless is that, as many have argued, one need not expressly vote to overturn Roe to make abortion all but inaccessible in anti-abortion states. The seven states that have just one abortion clinic remaining within their borders demonstrate how judges and legislators can shift the goal posts for what constitutes an “undue burden” until abortion is virtually regulated out of existence. Each faux minimalist opinion that hollows out Roe while pretending to adhere to precedent shifts those goal posts a tiny bit further. That’s why Collins’ posture is hopelessly naïve. Not only was this Trump’s explicit campaign promise, it’s also been the singular goal of pro-life groups since the 1970s. The idea that they don’t intend to do precisely what they’ve been promising to do isn’t just fanciful. It’s willfully blind.

Collins’ questions about precedent also do nothing to clarify whether Trump nominees will vote against Roe. Every potential appointee knows the magical incantations settled precedent and settled law. They chant those words the way Harry Potter chants a spell. “That is settled precedent of the court” is more or less nominee speak for “Those pants don’t make you look fat.” You say it because you have to say it. It means exactly nothing.

In case you’re busy on the day of the hearings, here’s what’s going to happen. The nominee will say she cannot answer any questions about abortion rights and call it the “Ginsburg rule.” (Ruth Bader Ginsburg discussed her views on Roe at her own hearings.) She will claim she believes in precedent, and she will deploy that belief in precedent as a shield against discussing abortion, and that will be that. And so unless Collins has the intention of being an all-out gladiator for women’s reproductive rights in the coming days and weeks, which means carefully scrutinizing the written and judicial record for indications of hostility to abortion and contraception, her promises that she won’t get spun on this issue are not terribly reassuring.

Recall that Collins was also going to save the Affordable Care Act until she didn’t, and also that she opposed Trump’s family-separation policy at the border until it came time to stand behind legislation that would’ve stopped it. And also that she has voted to approve every single one of Trump’s lower-court picks, including several with rabidly and overtly anti-abortion records.

She voted for John K. Bush, who described “slavery and abortion” as the “two greatest tragedies in our country” and compared Roe to Dred Scott, which denied citizenship to blacks. She voted for Leonard Steven Grasz, who defended Arkansas’ attempt to deny Medicaid funding to women who seek abortions due to rape, and who wrote a graphic anti-abortion law-review article that concludes, “There is no constitutional right to kill a partially-born human being.” She voted for Kyle Duncan, who argued that pharmacists should be able to refuse to dispense Plan B on religious grounds, and that Texas should be able to impose draconian restrictions on abortion providers that would result in the shuttering of most of the state’s clinics.

It is “settled law,” Duncan wrote, that the U.S. Constitution “requires deference to state judgments about the best means of protecting the health and safety of their citizens.” That is not true, as the Supreme Court noted when it struck down Texas’ regulations, with Kennedy casting the decisive fifth vote. But it is exactly the kind of deceptive line that conservative judges use to uphold anti-abortion laws while feigning adherence to Roe.

Each of these judges now sits on a federal court of appeals, just one step below the Supreme Court. As Collins surely knows, the vast majority of abortion cases are resolved in the courts of appeals, as the Supreme Court rarely agrees to hear them. That gives judges like Bush, Grasz, and Duncan final say over myriad abortion disputes. In fact, Bush, who sits on the 6th U.S. Circuit Court of Appeals, will soon help Ohio defund Planned Parenthood—a move the court blocked before an influx of Trump appointees reversed an earlier decision preserving the organization’s funding.

Collins holds the power to save reproductive rights in America. So far, she’s used that power to stack the lower courts with anti-abortion ideologues and to peer into the hearts of Roberts and Gorsuch to determine they respect precedent. If Collins wants to be a hero for American women, this is her moment. But taking a nominee at her word that “settled precedent” is “settled precedent” is not going to do the job.