Sarah Silbiger/ Zuma
Remember when Republican Sen. Susan Collins broke the tie to confirm Justice Brett Kavanaugh’s to the Supreme Court in 2018?
At the time, Collins was just one of two undecided senators. Her vote of support was pivotal to putting Kavanaugh in the highest court despite many scandals, including an accusation of sexual assault. A large piece of this was that Collins—who supports abortion rights—told the public that Kavanaugh wasn’t likely to overturn Roe v. Wade; that, in fact, she would not support a nominee who “demonstrates hostility” to the precedent. In a meeting, Collins said Kavanaugh had assuaged this fear by saying Roe was “settled law.”
Well, that was three years ago and a lot has changed.
During today’s oral arguments in Dobbs v. Jackson on Mississippi’s law banning abortions after 15 weeks, Kavanaugh didn’t sound like the person who Collins described.
He asked Mississippi Solicitor General Scott Stewart to clarify whether his state was “not arguing that the Court somehow has the authority to itself prohibit abortion…” Or, to put it in layperson terms, that if the court repeals Roe, that doesn’t mean it is outlawing abortion. Um, Brett, nobody is asking the Supreme Court to mandate an abortion ban. We’re talking about the fact that there is a fundamental right to abortion not being upheld for people in states intent on infringing upon it.
That wasn’t the end. Kavanaugh went on to list major court cases, such as Brown v. Board of Education, that overruled precedent. He said this was to show that “if we think that the prior precedents are seriously wrong,” it’s fine to overturn them. “Doesn’t the history of this court’s practice…tell us that the right answer is actually a return to the position of neutrality?” he continued.
Kavanaugh says some of the important cases in history overruled precedent.
"If we think that the prior precedents are seriously wrong … why then doesn't the history of this court's practice … tell us that the right answer is actually a return to the position of neutrality?" pic.twitter.com/axizPLJK22
— Mark Joseph Stern (@mjs_DC) December 1, 2021
Well, we know that a “position of neutrality” wouldn’t exactly be neutral. It would reverse Roe, overturning nearly 50 years of abortion rights for pregnant people.
Again, Collins, this isn’t sounding very “settled”! Her thoughts? Well, she told a reporter that she did not listen to the oral arguments.
“I did not see his questioning or hear any of the arguments. I hope to later tonight play them so I have first-hand knowledge…but so can’t comment about what I didn’t see,” she said, adding that she was “for” Roe.
Susan Collins on abortion hearing and Kavanaugh:
“I did not see his questioning or hear any of the arguments. I hope to later tonight play them so I have first hand knowledge…but so can’t comment about what I didn’t see.”
“I’m for Roe,” she said when asked about its future
— Igor Bobic (@igorbobic) December 1, 2021
This has frustrated colleagues. “I don’t know where she got that reassurance,” Sen. Mazie Hirono (D-Hawaii) told Mother Jones on Wednesday about Collins’ position, sounding exasperated. She cited Kavanaugh’s decision during his time as a DC Circuit judge that would have forced an undocumented minor further into pregnancy had a federal court not intervened to grant an abortion. “I have no assurances that he’s going to do much to protect a woman’s right to choose,” Hirono said. “He basically does not consider any regulatory burden so burdensome on a woman [that it should not legally exist].”
The three justices appointed under Trump—Kavanaugh, Neil Gorsuch, and Amy Coney Barrett—all appeared to signal support for Mississippi’s ban. A decision is expected next summer.
