U.S. Supreme Court justices signaled new limits on abortion Wednesday, with Justice Brett Kavanaugh among those seeming to suggest the possibility of overturning the landmark Roe v. Wade decision during oral arguments on a restrictive Mississippi law.
A decision overturning the precedent would all but eliminate access to abortion in conservative states and have national implications, though there are several possible outcomes that the court could pursue. It is putting Sen. Susan Collins, one of the few Republicans to support abortion rights, back in the spotlight after she helped confirm Kavanaugh to the court and has been adamant that the high court would not overturn Roe v. Wade.
Justices heard arguments Wednesday about a Mississippi law banning abortion after 15 weeks, which contradicts the standard set in 1973 establishing the right to an abortion prior to fetal viability, typically around 24 weeks. The Supreme Court has generally upheld that standard since, but opponents of abortion rights believed a more conservative court with three nominees from former President Donald Trump would be more open to challenging that precedent.
Collins faced heavy pressure from reproductive rights advocates to oppose Trump’s judicial nominees, most notably Kavanaugh in 2018. Opponents of his nomination argued his judicial history and writings conflicted with Collins’ stated support for abortion rights. But the Maine senator ultimately voted to confirm him, saying he had assured her he believed in precedent and viewed Roe v. Wade as “settled law.”
In the aftermath of that vote and during her successful 2020 reelection campaign, Collins said repeatedly that she did not believe the high court would overturn the 1973 decision. She won reelection last year with 51 percent of the vote in a four-way race against Democrat Sara Gideon, who put the judiciary at the center of her race against Collins.
Kavanaugh was among the justices who indicated skepticism of Roe v. Wade on Wednesday, noting a range of historic cases had overturned precedents. He also questioned whether the court should be weighing in on abortion rights at all.
“Why should the court be the arbiter?” Kavanaugh asked. “There’ll be different access in Mississippi and New York, Alabama and California.”
Collins, who is serving in her fifth term in the Senate, told reporters in Washington on Wednesday afternoon that she had not heard the arguments from earlier in the day, but reiterated her support for the landmark 1973 decision.
“I’m for Roe,” she said.
A spokesperson for the Maine senator said she planned to wait for the court’s decision before commenting further. That is not likely until June, but abortion opponents were optimistic, including Carroll Conley, the executive director of the anti-abortion Christian Civic League of Maine who traveled to Washington, D.C. for the arguments.
He came away “encouraged,” particularly by the questioning from Kavanaugh and Justice Amy Coney Barrett, who seemed like they were willing to look at not just the 15-week standard in the Mississippi law, but the underlying question about Roe v. Wade.
“Their lines of questioning did not look towards compromise at all. It was definitely looking at the essence of, ‘Either there is or there isn’t an inherent right to an abortion in the Constitution,’” Conley said.
Abortion-rights backers were nervous. U.S. Rep. Chellie Pingree, a Democrat from the 1st District, said Wednesday she was “deeply concerned” the court “signaled it would throw out 50 years of settled law to uphold Mississippi’s abortion ban.”
“This decision could end abortion access nationwide by giving the green light to anti-choice governors and legislators to enact similar draconian bans,” Pingree said.
If the court overturns Roe v. Wade, it is unlikely to impact abortion access in Maine in the short-term. The right to an abortion prior to fetal viability is enshrined in state law, and Maine passed several laws as recently as 2019 to expand access to the procedure.
Democrats have pushed for a similar federal law legalizing abortion. Collins reiterated her support for such a plan on Wednesday, saying she “had some conversations” with colleagues on that, though she opposes a Democratic bill to do so, arguing it goes too far beyond the court decisions current law is based on. With the current 50-50 Senate makeup, passing a bill codifying abortion rights would also likely require getting rid of the filibuster, something Collins, other Republicans and key centrist Democrats continue to oppose.
Gov. Janet Mills, a Democrat, tweeted on Wednesday that she hoped the high court upheld abortion rights, but if it did not, Mainers can be “damn sure that I will stand in the way of every and any threat to undermine, roll back, or outright eliminate” abortion access. Her opponent in next year’s election, former Gov. Paul LePage, is anti-abortion, but bills to restrict the procedure were defeated after he and fellow Republicans won full control of Augusta for two years in 2010.
Restrictions in other states could still lead more to seek out care in Maine. Planned Parenthood of Northern New England, which operates clinics here, reported it is seeing more patients from as far away as Texas after the state banned abortions after six weeks earlier this year.
The court battle could also make abortion a more potent political issue in 2022 elections. Conley, of the Christian Civic League, noted a greater possibility of limiting abortion in Maine might motivate voters who oppose it as well as those who back abortion rights.
“For both sides obviously, this would turn the heat up,” he said.