Now that President Donald Trump has nominated Brett Kavanaugh to fill the seat vacated by Justice Anthony Kennedy’s retirement, the Supreme Court may soon have the five votes necessary to strike down Roe v. Wade.
Whether the Supreme Court upholds restrictive state-level abortion laws or overturns Roe outright, abortion access will become even more dependent on zip code and financial means — particularly as states become further emboldened to pass harsher laws with a sympathetic court, a last line of defense for abortion laws.
With that in mind, all eyes are on Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) to see whether they’ll oppose Kavanaugh’s nomination. These lawmakers say they value abortion rights and have sided with Democrats before, defeating a bill to gut the Affordable Care Act last summer.
Activists are already preparing for a country with a weakened or overturned Roe. Some states will fare better than others, depending on the statehouse politics. So if the Supreme Court does confirm Kavanaugh and gets another vote to potentially threaten abortion rights, how will Collins’ and Murkowski’s states fare?
Residents of both Maine and Alaska have more protections than residents who live in the four states with “trigger” laws (Louisiana, Mississippi, North Dakota, South Dakota) that immediately ban abortion should Roe be overturned.
NARAL Pro-Choice America rates Maine as having protected access to abortion. Local lawmakers added additional protections for reproductive rights by adding the affirmative right to choice into its state law in 1979, protecting Mainers should Roe be overturned.
Even so, Maine Women’s Lobby executive director Eliza Townsend said this shouldn’t give Collins the impression that Maine has nothing to lose.
“Maine does have a law that codifies abortion in statute but that’s a law. Laws can be changed. And as we saw in the case of the fetal personhood bill vote just within the last legislative — the last two years of the last legislative session — is that laws can be changed and margins are much more narrow than one might think,” Townsend told ThinkProgress.
Maine lawmakers did narrowly defeat a proposal last summer that would allow parents to take legal action over the death of a fetus over 24 weeks. Maine Women’s Lobby described the measure as “a backdoor attempt to make it harder for women to maintain control over their own bodies by creating confusion in Maine law.” It was a close call, as the statehouse is mixed on abortion rights.
Maine lawmakers have tried to enact tougher abortion laws but failed, so the only restriction as of May 2018 is one that blocks public funding for the procedure, according to the Guttmacher Institute. But this isn’t to say it will never happen. With restrictive abortion laws already in the court pipeline nationwide, a Republican-controlled Legislature could be tempted to pass similar laws in Maine knowing they’ll be upheld in the court.
In Alaska, meanwhile, the state constitution protects the right to choose should Roe be overturned. Alaska can amend the constitution by a two-thirds supermajority in the statehouse and an affirmative vote from residents on a general election ballot. While the senate and governor are anti-abortion, the house isn’t — meaning abortion access isn’t in grave danger in Alaska.
However, Alaska is one of the states that mandates counseling that provides pregnant people information designed to discourage them from having an abortion. This law is currently being challenged in several states, and could be one of those lawsuits that reaches a Supreme Court with Kavanaugh seated as Kennedy’s replacement.
When Trump announced his nomination of Kavanaugh on Monday night, the two senators released similar statements, showing little indication on how they’ll vote.
— Sen. Susan Collins (@SenatorCollins) July 10, 2018
My statement on the nomination of Judge Brett Kavanaugh to be the next Supreme Court justice: pic.twitter.com/SEZmSbZg9C
— Sen. Lisa Murkowski (@lisamurkowski) July 10, 2018
“I found those comments worrisome,” Townsend said in reference to Collins, her senator. “I’m certainly hopeful that she would dig more deeply, that she will look beneath the surface, that she will press him on issues and not just accept his statements on face-value.”
While activists’ chances are slim, they are still investing the time and money in the fight — hoping that Kavanaugh will be another Robert Bork, who the Senate blocked in 1987 from becoming a lifetime Supreme Court Justice, which gave way to Kennedy’s appointment.
They are also making some direct connections to a potential country without Roe. Activists sent coat hangers to Collins’ office last week, reminding her the lengths to which people went to terminate a pregnancy when abortion was illegal in much of the country.