Susan Collins misrepresents Brett Kavanaugh on choice

Originally published in the Bangor Daily News on July 7, 2020.

Sen. Susan Collins’ support for Brett Kavanaugh was one of the most significant decisions of her career, both because of its political import and for what it says about the senator’s judgment and credibility. In light of last week’s abortion ruling, Collins’ rationale keeps looking bad.

When Collins voted for Kavanaugh in October 2018, she claimed that reproductive rights advocates had it wrong. While they saw Kavanaugh as threatening women’s right to have a safe, legal abortion, Collins argued that Kavanaugh respected precedent and was no threat.

But it is Collins who misstated what a key legal decision means and, by portraying it inaccurately, misrepresented Kavanaugh’s position.

This involves a case you might not have heard of. It is certainly less well known than Roe v. Wade, which held in 1973 that, before fetal viability, states cannot limit women’s freedom to choose an abortion.

The critical case is Planned Parenthood of Southeastern Pennsylvania v. Casey. Decided in 1992, the title is often shortened to Casey, and it concerned laws passed in 1988 and 1989.

Pennsylvania lawmakers had limited abortion in four ways. One, women would have to wait 24 hours before having an abortion. Two, women had to hear information about abortion. Three, minors needed a parent’s consent or that of a judge. Four, a married woman needed to notify her husband that she intended to have an abortion. All but the fourth were ruled constitutional.

Beyond these details, the big outcome was that Casey allowed states to put some restrictions on abortion, including ones that would limit women’s ability to access an abortion. Limits were OK unless the majority of the Supreme Court decided the state created an “undue burden,” restricting women’s rights too much.

Whether you’ve heard of Casey, Collins certainly has. She mentioned it four times when she explained why she was voting for Kavanaugh to sit on the Supreme Court.

In the same speech Collins said that “protecting” abortion rights “is important to me.” Collins contended that Kavanaugh’s support of Casey as a precedent meant that Kavanaugh would not undermine women’s reproductive rights and consistently characterized Casey as supporting abortion rights.

But Collins’ description of Casey is inadequate and misleading.

While Casey didn’t let states ban abortion outright, it did allow them to make it harder to get an abortion. As legal analyst Jessica Mason Pieklo told Vox, “Casey opened the door for a whole host of restrictions that would have probably been unconstitutional under a straight Roe analysis.”

After the Casey decision, many state legislatures passed all sorts of limits into law, including requiring women to pay for and watch an ultrasound even when doctors say the test is not needed and making women wait a day afterwards to have an abortion. Half of the states now have some sort of ultrasound abortion law.

Justice Stephen Breyer found that the Louisiana law would “result in a drastic reduction in the number and geographic distribution of abortion providers” and create “substantial obstacles in the path of women seeking an abortion.”

But, if Justice Kavanaugh’s view had prevailed, the law would have gone into effect.

And, despite Collins saying Kavanaugh respected precedent, he did not. Kavanaugh voted to uphold the Louisiana law even though, as Chief Justice John Roberts noted, four years ago the court invalidated “a nearly identical Texas law.”

When announcing his vote against Kavanaugh, Sen. Angus King said that, regarding abortion rights, Kavanaugh “will almost certainly vote to whittle away … protections, leaving not much more than a hollow shell.”

And that is exactly what Kavanaugh, using his leeway under the Casey decision, voted to do, something many scholars and elected officials — but not Collins — said they saw coming.

Amy Fried is chair of the Department of Political Science at the University of Maine. Her views are her own and do not represent those of any group with which she is affiliated.

Amy Fried

About Amy Fried

Amy Fried loves Maine's sense of community and the wonderful mix of culture and outdoor recreation. She loves politics in three ways: as an analytical political scientist, a devoted political junkie and a citizen who believes politics matters for people's lives. Fried is Professor of Political Science at the University of Maine. Her views do not reflect those of her employer or any group to which she belongs.