The new Alabama abortion law is putting Justice Brett Kavanaugh and Sen. Susan Collins back in the spotlight.
Kavanaugh has been on the bench for less than nine months after his dramatic confirmation hearings, but his nomination triggered a torrent of worry for supporters of abortion rights, fearful that unlike conservative centrist Justice Anthony Kennedy, he would consistently side with the right on the issue.
Now critics are taking aim at Collins, the Maine Republican who essentially ensured his confirmation last October and said she was convinced Kavanaugh would not overturn Roe v. Wade.
Collins told CNN’s Manu Raju on Thursday that she doesn’t believe Kavanaugh would uphold the Alabama law.
“The Alabama law is a terrible law – it’s very extreme – it essentially bans all abortions. I can’t imagine that any justice could find that to be consistent with the previous precedents,” Collins said.
But two of Collins’s Senate colleagues say the prospect of the Supreme Court revisiting the right to terminate a pregnancy, whether by reversing Roe or otherwise embracing limits on abortion access, shows that the senator should have been more skeptical of Kavanaugh.
“I don’t know what she was thinking,” Minnesota Sen. Amy Klobuchar said on CNN Tonight with Don Lemon.
In the coming weeks, Kavanaugh will likely cast votes that will further illuminate his position on the future of abortion rights. Currently, the justices are considering whether to take up for next term provisions of three laws in two states that have been blocked by the lower courts. An Indiana provision, for example says that a state can prohibit abortions based solely on the race, sex or disability of the fetus. Another requires that fetal remains be buried or cremated. A third mandates that an individual seeking an abortion obtain an ultrasound at least 18 hours before the procedure.
An Alabama law – separate from the controversial measure passed this week – prohibits doctors from performing a particular procedure called “dilation and evacuation” that supporters of abortion rights say is the most commonly used method for performing pre-viability second trimester abortions.
Waiting in the wings is another case concerning a Louisiana law that requires doctors to have admitting privileges in nearby hospitals. These particular cases do not ask the justices to overrule Roe directly, but critics say their purpose is to chip away at a woman’s right to choose.
Sen. Kirsten Gillibrand, D-New York, said she didn’t believe Kavanaugh was being truthful during his hearings when he testified.
“I think his statement was dishonest and disingenuous,” Gillibrand said on CNN’s Anderson Cooper 360 Wednesday.
“But the American people are watching and if he lied under oath in the hearings, that’s going to be problematic so I hope the American people and American women everywhere will hold this President accountable and will protest the extreme decisions by legislatures and governors being signed into law,” she added. “It is literally turning back the clock on settled law.”
During his confirmation hearing last year, Kavanaugh said that Roe v. Wade is “an important precedent of the Supreme Court” that had been reaffirmed many times. He said that the 1992 Casey v. Planned Parenthood ruling upholding Roe was “precedent on precedent.”
Collins has cited that comment and personal discussions as part of why she backed Kavanaugh.
“He said under oath many times, as well as to me personally many times, that he considers Roe to be ‘precedent upon precedent’ because it had been reaffirmed in the Casey v Planned Parenthood case,” Collins said earlier this year.
But Kavanaugh’s foes point out that the court can always overturn precedent, as it did earlier this week in an unrelated case when it did away with an opinion that had been on the books for some 40 years.
“When women stood up in record numbers to fight Kavanaugh’s nomination, propelled by his alarming record and Trump’s promise to nominate jurists committed to criminalizing abortion and punishing women we were told we were ‘hysterical’ because Roe was settled law,” said NARAL Pro-Choice America President Ilyse Hogue in a statement issued Tuesday night.
“Not six months later, we are battling measures where the stated goal is exactly that: outlawing abortion,” Hogue said.
Supporters of the Alabama law acknowledge that the Supreme Court is likely to move incrementally, but they do not hide the fact that their ultimate target is the demise of Roe v. Wade.
“Alabama has renewed the essential conversation about the meaning of justice and morality, one that starts with recognizing what abortion is: The extinguishing of a unique human life,” said Catherine Glenn Foster of Americans United for Life, in support of Alabama’s law.
As a lower court judge, Kavanaugh dissented when the US Court of Appeals for the District of Columbia Circuit ruled that a 17-year old undocumented woman – called “Jane Doe”– in detention in Texas was entitled to seek abortion without delay.
Kavanaugh wrote that the majority based its decision on “a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in US government detention to obtain immediate abortion on demand.”
Kavanaugh said that “all parties” recognize that Roe and Casey as precedents that “we must follow.” He stressed, however, that a question before the panel was whether the government could “expeditiously transfer Jane Doe to an immigration sponsor before she makes the decision to have an abortion.”
“We have already seen a glimpse of where Justice Kavanaugh is on the right to abortion, in that case he failed to follow Supreme Court precedent that says that the government is prohibited from blocking abortion from anyone,” said ACLU lawyer Brigitte Amiri who represented the 17-year-old woman.
As a Supreme Court justice, Kavanaugh cast a vote to allow a law limiting access to abortions in Louisiana to take effect in February. He was in the minority, however. A 5-4 court, with Chief Justice John Roberts joining the liberals on the bench, blocked the law pending appeal.
If the court does take up one of the cases, the decision could occur by the end of next June, in the heart of the presidential campaign. During the election season, President Donald Trump is likely to tout the fact that not only has he been able to place two conservative justices on the Supreme Court, but he’s changed the face of the lower courts as well with an unprecedented number of appointees.