Setting aside whether the Senate should confirm a Supreme Court nominee in an election year (the Merrick Garland rule) or whether a president should be allowed to appoint a justice while still under the cloud of the Russian meddling investigation (given the variety of issues such as whether a president can pardon himself potentially to be settled by the nation’s highest court), the vacancy created by the retirement of Justice Anthony Kennedy raises a more fundamental concern: What does it mean for the future of women’s reproductive rights?
Good luck getting a straight response on that subject from any Republican. Oh, it appears everyone from Senate Majority Leader Mitch McConnell to President Donald Trump knows the answer, but they have now entered what might be described as the “wink and nod” mode during which they communicate only through the most circumspect means possible. The long-standing goal of social conservatives and the Trump coalition is to overturn Roe v. Wade and allow states to ban legal abortions, of course, but they know admitting that now would cost them at least two critical votes, those cast by Maine’s Susan Collins and Alaska’s Lisa Murkowski, both of whom claim to support women’s right to choose.
So there was Senator Collins on network television over the weekend offering herself as some kind of bulwark against the return of back-alley medical care, boldly declaring that any nominee “who would overturn Roe v. Wade would not be acceptable to me.” And how would she determine who might be hostile to abortion rights? Here’s the rub. She said she needed to hear that the nominee would respect judicial precedent. Get it? Roe was decided in 1973. It’s precedent. Can’t touch that if you respect prior court’s decisions, right?
Well, actually, no. There are all kinds of ways the Supreme Court can undermine abortion rights, and we know this because they already have. Just this term, the court blocked a California law requiring pregnancy crisis centers to share information about abortion and contraception. And given that these faith-based anti-abortion centers are more common than facilities where women in the Golden State can actually learn about abortion, the court is already catering to the anti-abortion crowd by keeping a lid on the truth.
Most importantly, the swing vote on that 5-4 decision came from Neil Gorsuch, Mr. Trump’s first court appointee who declined to say much about his views on abortion cases when he was grilled by senators in the spring of 2017. Oh, he was all for precedent. (And offered all sorts of nice things about less controversial decisions like Brown v. Board of Education or Loving v. Virginia.) But on Roe v. Wade, he had little to say other than acknowledging it had been “been reaffirmed many times, I can say that."
Such coyness under fire is hardly unprecedented. John Roberts took a similar approach during his confirmation, famously calling Roe the “settled law of the land” despite writing a brief during the George H.W. Bush administration in which he argued the Constitution provided no support for Roe and that it was wrongly decided. Where does the chief justice stand now? It’s hard to say, but Senator Collins’ observation, also made during her Sunday TV appearance, that Justices Roberts and Gorsuch would not overturn Roe because they respect legal precedent seems extraordinarily naive — or a deliberate fudging of the facts. Just last week, the two men demonstrated their respect for precedent in overturning longstanding organized labor rights in the Janus v. AFSCME case.
The far more likely scenario is that there are all sorts of ways the Supreme Court can chip away at abortion rights short of overturning Roe (like the Iowa law banning abortion when a fetal heartbeat is detected — as early as the sixth week — that was scheduled to go into effect this week but is now under a legal challenge). President Trump knows this. Senator McConnell knows this. The Federalist Society, which knows how to help Mr. Trump pick a nominee antagonistic toward Roe without a paper trail, knows this, too. Let’s stop the pretense. President Trump let it slip Sunday that he expects the court will soon put the future of abortion rights in the hands of states. That’s the plan. And allowing yourself to be duped, Senator Collins, isn’t the same thing as standing up for women’s rights.
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