Words Have Meaning

Senator Susan Collins of Maine ran as a pro-choice Republican. She represents herself that way to her constituents. That position is important to her political identity, both as a woman and as a Senator.

But in an interview with The New York Times, Sen. Collins laid out her thinking on the topics of abortion, precedent, Roe v. Wade, and the high court. The implication of her statements is that she can not be trusted to fight for women’s rights.

On the surface, Collins’ comments seem encouraging. “I am pro-choice,” she says. “I consider Roe v. Wade to be settled law. It is a precedent that should be respected.”

But the law is a funny thing. Roe establishes a woman’s right to choose, not her right to have any specific set of choices. If this feels like splitting hairs that’s because it is; the law is like that. Roe says that a woman’s right to privacy is more important than the State’s right to tell her she can’t have a specific medical procedure… up until the third trimester, at which point the State can claim that it has a duty to the fetus and use that to ban the procedure.

In Planned Parenthood v. Casey the Court moved the goal posts, establishing that fetal viability, not merely the third trimester, would determine when the State could use its duty to the fetus to ban abortion. The Court noted that viability might happen at 23 or 24 weeks and that medical science might push that date yet earlier.

And thus begins the long, slow slide towards the effective, if not the outright banning of abortion. In interpreting Casey’s “fetal viability” standard more and more optimistically, the Court can ratchet down the window in which an abortion can be sought without overturning Roe directly. In allowing the State to place arbitrary limits on what it expects of a licenced clinic, the Court can further erode access to abortion without banning it outright.

And at some point the reality of a ban eclipses the legality of one.

It is on this razor’s edge that Senator Collins seems determined to dance. While Collins considers herself to be pro-choice, she goes on to say that she, “[does] not apply a litmus test to the personal views of a nominee.” She continues, “I know personally that you can have a personal opinion on what you would do in a certain difficult situation that may well differ from your public policy view.”

This is, of course, pretty standard stuff. Simply wanting kids does not make someone pro-life. To be pro-life is not merely to be of the opinion that you, personally, would not seek an abortion; it is to be of the opinion that it should be against the law to do so.

So when Collins elaborates on her position with the following, it should raise alarm bells:

“If a judge is pro-life personally I respect that view, but I also want that judge to be able to put aside his or her personal views and apply what is the long standing precedent and Roe v. Wade is a long standing precedent that has been ratified by the Supreme Court.”

Being “pro-life personally” doesn’t mean that the judge in question wouldn’t terminate a pregnancy, despite how Collins set the concept up earlier in the interview. Collins is saying she’s fine with someone on the Court who thinks abortion should be illegal. She’s softening that statement by saying that she would want that person to respect the precedent set by Roe, but Roe doesn’t promise you access to abortion; it just requires that the state not bar it outright.

No, Collins is going to try to shrug her way out of this one. She’s preparing for a Trump appointee who thinks abortion should be illegal. She’s said she’ll vote against one that has been openly hostile to Roe in their previous, public decisions but that litmus test is a meaningless platitude. Openly defying the Supreme Court like that would be a death knell for any career in the judiciary, not the sort of thing that gets someone tapped for a lifetime appointment to the highest court in the land.

Mr. Trump will likely nominate someone who is “personally pro-life” but has never ruled on Roe directly. Democrats will push the nominee on how they would handle a challenge to Roe or a further curtailment of women’s rights and the nominee will evade the question. Republicans, in turn, will aid in that evasion and Susan Collins will be perfectly happy with that. Indeed, as she told the New York Times:

One of the dilemmas that one has when reviewing a judicial nominee is following the Ruth Bader Ginsburg precedent. Judges will not tell you nor should they tell you how they would rule on a specific case and it’s inappropriate for a Member of Congress — a member of the senate — to ask how a nominee would vote on a particular case.

Collins cannot be allowed to stick her head in the sand and pretend that ignorance absolves her of responsibility in this choice. If she will not press Trump’s nominee on what, exactly, his or her vision of abortion rights is in the United States, it must fall to the rest of the Senate to do it for her. On this issue, the Senate, the Congress, and the country can not act blindly because respect for precedent is not enough.

Tell Congress What You Think

While just five votes will probably decide the future of the Supreme Court, the questions posed to Trump’s nominee by Senators from the other 45 states are probably the most effective way to sway those five votes. If you live in Maine, Alaska, Arizona, Indiana, North Dakota, or West Virginia, write your Senator about The Court in particular. If you live elsewhere, tell your Senator what you expect to see from her in the upcoming confirmation hearings.

You can write to your Senators by sending the word Resist to Resistbot on Facebook Messenger, Telegram, or as a Twitter direct message. If none of those work for you, Resistbot also supports old fashioned SMS: text RESIST to 50409 to get started. It takes 2 minutes to make a difference.