President Donald Trump’s nomination of Judge Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy has created a firestorm of attention on Maine, especially on Sen. Susan Collins, who identifies as a pro-choice Republican who on occasion has bucked her party.
Collins has said her approach to Kavanaugh’s nomination will mirror previous court nominees — determine his qualifications, which includes respect for precedent such as Roe v. Wade. While this is a laudable goal, and one that seems hard to disagree with, the balance of today’s court calls for a more rigorous standard.
Let’s be clear: Respecting precedent means embracing more than 50 years of the personal liberty standard that has protected an array of rights from bodily autonomy and abortion to sex, birth control and marriage.
While Maine enjoys limited restrictions on abortion and even affirms our right to reproductive privacy, these laws could be eroded or even overturned by lawmakers. Even with such laws, Maine women still face enormous barriers to receiving abortion care.
Since MaineCare, Maine’s Medicaid program, does not cover abortion, many low-income people struggle to pay for abortion care. This is exacerbated by Maine’s highly rural and remote character that makes traveling to a clinic, such as ours, a challenge. As Maine has one of the highest domestic violence homicide rates nationwide, we also have grave concern for women in abusive relationships who often fear for their safety when seeking reproductive health care.
Every single person who enters our clinic is protected by the Constitution’s personal liberty standard to make decisions about their bodies and health care. Unfortunately, Kennedy’s retirement means the balance of the court may turn against a woman’s right to abortion and jeopardize reproductive rights. I implore Collins to ask any nominee to demonstrate a respect for precedent by affirming the personal liberty standard.
Only a nominee who recognizes the due process clause’s substantive protection of individual liberty will respect precedent. The due process clauses of the Fifth and 14th Amendments prevent the government from depriving any person of “life, liberty, or property, without due process of law.”
In a long line of cases, stretching over 50 years from the 1965 decision in Griswold v. Connecticut, which established the individual right to access contraception, to Obergefell v. Hodges, the 2015 decision recognizing the freedom to marry, the Supreme Court has defined the Constitution’s protection of “liberty” to include the individual right to have an abortion, engage in private sexual conduct and create families.
As Justices Sandra Day O’Connor, David Souter and Kennedy explained in Planned Parenthood v. Casey: “Our law affords constitutional protection to personal decisions … involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
And Justice Ruth Bader Ginsburg explained it this way in her confirmation hearing: “There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the Fourth Amendment. … The other is the notion of personal autonomy. The government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my government, basic decisions that affect my life’s course.”
Most recently, the court addressed this right in Whole Woman’s Health v. Hellerstedt. In the majority opinion in which Kennedy was the fifth vote, the court struck down Texas’ highly restrictive abortion law as “unduly burdensome” for forcing women to travel hundreds of miles to access abortion care, a clear infringement on their constitutional rights originally protected by Roe and further defined by Casey. There was no clear scientific or medical evidence to support any of the restrictions that led to clinic closures.
Despite such compelling precedent, both Justices Samuel Alito and John Roberts, previously approved by Collins, dissented and would have ruled in favor of the state’s ideologically driven agenda to close abortion clinics and harm women.
Vague questions about “respecting precedent” or “upholding Roe v. Wade” are insufficient. The precedent test that Collins must demand is clear: unless a nominee affirms the due process clause protects individual liberties including people’s ability to make personal decisions about their bodies and relationships, that individual should not be confirmed.
Andrea L. Irwin is executive director of Mabel Wadsworth Center in Bangor.
Follow BDN Editorial & Opinion on Facebook for the latest opinions on the issues of the day in Maine.