On Independence Day, we celebrate the shared American experiences and reflect upon the noble ideals of individual freedom to which we aspire. Yet, this Fourth of July finds these values in peril.
In the coming weeks, Maine’s Sen. Susan Collins must help ensure the Supreme Court functions as a check against the degradation of freedom. The stakes are extraordinary, particularly for reproductive rights. Collins’ actions here may cement her political legacy.
Americans like to think that individual freedoms form the bedrock of our society. In practice, respect for fundamental rights has always been problematic, uneven and conditional. As a political scientist studying democratic engagement, I’ve examined the ways that institutional inequalities undermine the ability of all citizens to share in the promise of a free society. And I can say that societies that do not protect reproductive rights create just such inequities.
With Justice Anthony Kennedy’s retirement, President Donald Trump can now appoint a justice who could shape American jurisprudence for decades.
Kennedy’s announcement last Wednesday came as the court offered split decisions on numerous contentious issues ranging from Trump’s travel ban to public sector unions’ ability to collect fees from non-members. In these cases, along with numerous others, Kennedy’s swing vote was pivotal (and reflected his conservatism as a Ronald Reagan appointee). However, his exit has profound implications for reproductive rights and whether safe, legal reproductive health access remains a reality in our country.
The current court has already proven hostile to reproductive rights. Last week also saw the court rule in NIFLA v. Becerra that “crisis pregnancy centers” have no obligation to inform those facing unplanned pregnancies of all their options, including terminating the pregnancy. In this case, Kennedy wrote a scathing opinion agreeing with the majority, scolding the state of California for what he viewed as religious persecution.
But Kennedy was also one of three co-authors of the 1992 decision that established the “undue burden” test, barring state laws imposing substantial obstacles to safe, legal abortion. This standard was invoked in 2016 when the court struck down a Texas law that would have drastically limited reproductive health access.
With Kennedy’s departure, it’s assured that Trump will choose a nominee more hostile to Roe v. Wade. The landmark decision would come under a rapid and multi-dimensional assault. Advocacy groups and legislators hostile to reproductive rights would be emboldened to challenge these basic freedoms in our nation’s state houses and in the courts.
Trump has made his intention to undo Roe v. Wade through Supreme Court appointment clear, stating it explicitly in presidential debates. Trump will be selecting from a list carefully curated by the Koch Brothers-funded conservative group, The Federalist Society (as was his first appointee, Neil Gorsuch).
The Federalist Society’s vice president, Leonard Leo, is currently working full time with the Trump administration on identifying Kennedy’s replacement. As one conservative legal activist recently wrote, “No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade than the Federalist Society’s Leonard Leo.”
Collins has repeatedly stated her commitment to protecting women’s health and reproductive rights. In the weeks to come, Collins, as a Republican willing to break with the party, must work to block potential nominees that would be part of an assault on those principled commitments.
She has said she believes that Roe v. Wade is “ settled law” and that she would want a nominee who “ respects precedent.” Justices Gorsuch and Roberts, her examples of such respect, have proven all too willing to overturn existing law and undermine reproductive rights.
What is clear is that the Trump administration, its closest advisers and many within Collins’ own party simply do not share her view of reproductive freedom. For them, reproductive rights are not off-limits. Trump has stated so explicitly, and surrounded himself with those intent on dismantling reproductive freedom. Their intentions are clear. We must take them at their word.
Freedom is not a passive condition. It requires active maintenance and a diligent commitment to fight on its behalf. Collins shares the opinion of myself, a majority of Mainers and the majority of Americans that abortion should be legal.
I believe that Collins should use her power to protect the majority opinion of Mainers and all Americans not just because that is what’s best for equality, but also because that’s what democratically elected officials should do.
Robert W. Glover is an associate professor of political science and honors at the University of Maine in Orono. This column reflects his views and expertise, and does not speak on behalf of the university. Glover is co-director of the Maine chapter of the national Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications. Members’ columns appear in the BDN every other week.
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