On Sunday, Sen. Susan Collins (R-ME) gave a moment of hope to anyone praying that the Supreme Court is not about to take a hard lurch to the right — when she claimed that anyone Donald Trump nominates to the Court “who would overturn Roe v. Wade would not be acceptable to me.”
That hope did not last long, however, as Collins quickly revealed that she is either the most credulous person on the planet, or that she thinks that everyone listening to her is very stupid.
— Shannon Fisher (@MsShannonFisher) July 1, 2018
This shouldn’t need to be said, because it is so obvious, but of course Neil Gorsuch will vote to overrule Roe v. Wade!
Let’s review, shall we? Gorsuch wrote a book which, while ostensibly about euthanasia, is loaded down with the rhetoric of the anti-abortion movement. Does anyone think that when the staunch social conservative wrote that “the intentional taking of human life by private persons is always wrong” that he wasn’t thinking about abortion?
Or, for that matter, does anyone think that when Gorsuch engaged in procedural gymnastics in a failed effort to defund Planned Parenthood that he was doing so out of some purely legalistic concern? Maybe Susan Collins thinks that. If she does, I need to introduce her to my friend. He’s a Nigerian Prince, and he would like to offer Collins a deal that will earn her $15,000,000 American dollars.
Nor is there any reasonable doubt that Trump’s forthcoming nominee will vote to overrule Roe. As a candidate, Trump explicitly promised to name judges to the Supreme Court who will vote against Roe. True, Trump’s promises are normally worth less than a degree from Trump University, but the president largely delegated the task of finding potential Supreme Court nominees to the conservative Federalist Society, and the Society isn’t about to ruin its best chance of killing Roe by sending Trump anyone who isn’t fully committed to this cause.
The question is not whether Gorsuch — or Trump’s next Supreme Court nominee — will vote to overrule Roe. The question is how they will do it.
Two ways to overrule Roe v. Wade
One way the Court’s new Trumped up majority could overrule Roe v. Wade is simply to write the words “Roe v. Wade is overruled.” This approach has the upside of being honest, but it also comes with two potential downsides for Collins’ Republican Party. A decision explicitly overruling Roe could galvanize voters to elect Democrats who will protect the right to choose, and it would reveal that Collins is either a liar or a fool.
So the Court may chose to overrule Roe dishonestly. It may never actually write the words “Roe v. Wade is overruled,” but it could uphold any abortion restriction that isn’t an explicit ban. The Court’s 2015 decision in Whole Woman’s Health v. Hellerstedt offers a road map for how the new majority could overrule Roe without having to actually write those five magic words.
Whole Woman’s Health involved a Texas law that imposed unnecessary architectural requirements on abortion clinics, while also imposing needless credentialing requirements on abortion doctors. The idea was to drive up the cost of operating a clinic so much that they would shut down, while also starving abortion clinics for doctors that legally could perform abortions.
Though the Court struck down this Texas law, it did so in a 5-4 decision with retiring Justice Anthony Kennedy in the majority. Once Trump replaces Kennedy, there will almost certainly be five votes to change the outcome in a similar case.
The Supreme Court, in other words, doesn’t need to explicitly overrule Roe in order to overrule Roe. It just needs to make it very clear that, if Texas wants to require every abortion clinic to have an operating room made out of solid gold, Texas is free to do so.
It’s possible that Chief Justice John Roberts, who sometimes frets that his Court should not stir up too much political turmoil, will attempt to avoid the political maelstrom that would result if Roe were explicitly overruled. But make no mistake about what Roberts is willing to do. Roberts was one of the four dissenters in Whole Woman’s Health. He’s already signaled his willingness to embrace solid gold operating rooms.
What Susan Collins is actually saying
Susan Collins has served in the Senate for more than two decades. She also reached the age of 65 without giving away her entire fortune to an email scammer. So it’s unlikely that she actually believes that Trump’s nominee won’t oppose Roe v. Wade. It is possible, however, that she is sending a signal to Trump about what sort of judge the accidental president should nominate.
Some of the judges on Trump’s likely short list, such as Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit, have fairly explicitly criticized Roe. Others, such as D.C. Circuit Judge Brett Kavanaugh, handed down fairly aggressive opinions limiting Roe. Others have thinner records on this issue.
What Collins is likely trying to communicate is not that she would oppose anyone Trump nominates who opposes Roe v. Wade. But, rather, that she would prefer that Trump pass over judges like Barrett or Kavanaugh in favor of someone who hasn’t broadcast their view of Roe. Collins, most likely, isn’t looking for a pro-choice justice. She’s looking for personal deniability.
The bad news for Collins is that she is up for reelection in 2020. That will give the Court more than enough time to overrule Roe before Collins needs to face her voters.
By the time Collins faces the voters again, anyone confirmed to the Supreme Court will almost certainly reveal their true colors. If Collins wants to avoid running for reelection in a blue state as the person who voted to kill Roe v. Wade, in other words, she needs to vote against Trump’s nominee.
She probably won’t, though.