Supreme Court nominee Brett Kavanaugh told Sen. Susan Collins on Tuesday that Roe v. Wade was “settled law,” the Maine Republican told reporters after their meeting.
Collins, who supports abortion rights, said she raised the issue with Kavanaugh, who is meeting with senators ahead of his confirmation hearings next month.
“We talked about whether he considered Roe to be settled law,” Collins said, referring to the landmark 1973 Supreme Court decision that established a woman’s right to terminate her pregnancy.
Collins said Kavanaugh told her that he agreed with Chief Justice John G. Roberts Jr., who said during his 2005 confirmation hearing that Roe was “settled as a precedent of the court.” Collins and Kavanaugh met for more than two hours on Tuesday morning.
“He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said it was settled law. We had a very good, thorough discussion,” Collins said.
She must think her constituents are very dim, but no one should be shocked that Collins sounds most of the way to “yes” on Kavanaugh’s confirmation. With zero evidence, she’s been saying that arch-conservative Neil M. Gorsuch(!), whom she voted to confirm, would also uphold Roe and thereby protect women’s constitutional rights. Moreover, her own rationale for voting for John G. Roberts Jr. — that he also would uphold Roe — is belied by the chief justice’s own record on the bench.
Roberts dissented from the 2016 ruling in Whole Woman’s Health v. Hellersedt, in which the Supreme Court by a 5-to-3 vote found a state law requiring that doctors have admitting privilege at a local hospital, and that abortion facilities meet the standards for ambulatory surgical centers, contravened women’s constitutional protections. Roberts and Justice Clarence Thomas joined a dissent by Justice Samuel A. Alito Jr. that asserted the plaintiffs should not have been able to proffer new evidence that abortion clinics had actually closed because of the state law. The parties in the case stipulated that “Prior to the enactment of H. B. 2, there were more than 40 licensed abortion facilities in Texas, which ‘number dropped by almost half leading up to and in the wake of enforcement of the admitting-privileges requirement that went into effect in late-October 2013.’ … If the surgical-center provision were allowed to take effect, the number of abortion facilities, after September 1, 2014, would be reduced further, so that ‘only seven facilities and a potential eighth will exist in Texas.’ ″ In essence, a law that effectively eliminated abortion facilities for millions of women would have been struck down had Roberts and the conservatives had two more votes. That is how abortion is effectively outlawed without explicitly overturning Roe v. Wade. (“2 million women of reproductive age will live more than 50 miles from an abortion provider; 1.3 million will live more than 100 miles from an abortion provider; 900,000 will live more than 150 miles from an abortion provider; and 750,000 more than 200 miles from an abortion provider.”)
Former federal prosecutor Harry Litman recently wrote:
There are individual state legislatures, who are poised to enact restrictions designed to pare back the abortion right to its nub or beyond, and can be expected to act with alacrity the day a new justice is sworn in.
The various laws are constrained only by the ingenuity of state legislators, but they surely will include compelled and potentially agonizing “education” of women to push them away from terminating pregnancies, (forced viewing of ultrasounds, 72-hour waiting periods, literature describing the fetus’s activity in the womb); absolute limits on abortions after a relatively early point in pregnancy; and gratuitous constraints, perhaps backed by criminal sanction, on abortion providers.
Perhaps most radically, the laws may include the declaration of war on abortion that some states have considered and that two (South Dakota and Missouri) have enacted: a state determination that life begins at conception, raising the prospect that abortions would constitute murder.
Collins must know this; pro-choice advocates in her state surely know this; but if she is looking for a fig leaf on which to justify her vote, the “settled law” canard will do as well as any. To be clear, no judge who the Federalist Society vetters thought would vote as Justice Anthony M. Kennedy did to protect abortion rights was ever going to get on that list. Collins can tell herself whatever fairy tale she pleases, but her vote will make laws like that in Whole Woman’s Health constitutional, thereby eliminating abortion access for millions of women around the country.
Collins’s meeting comes on the day a Democratic polling outfit finds 49 percent of Maine voters already oppose Kavanaugh and 47 percent will be less willing to vote for her if she votes for Kavanaugh. (Only 31 percent said more likely.) Moreover, given the fight over the release of Kavanaugh’s documents, Collins should note that voters oppose confirming him without the complete record by a margin of 56 percent to 34 percent.
Listen, if Collins simply said, I know he’s going to vote to eliminate abortions for millions of women, but I am still voting for him, that would be one thing. It’s the disingenuousness of the whole charade that is so distasteful.