CJudge John Roberts has condemned the leak of a draft Supreme Court opinion quashing Roe v Wade as a “treason”. But for the majority of Americans who support abortion access, the real betrayal was committed by the five judges who initially voted to overturn the historic case.
That’s especially true of the three conservative Supreme Court justices nominated by Donald Trump: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. During their Senate confirmation hearings, each of those three judges was asked about Roe and Planned Parenthood v Casey, the 1992 case that affirmed the right to access abortion and could now also be quashed.
The comments made by the three judges during those hearings are now under scrutiny as they are accused of misleading politicians and the public about their willingness to overthrow Roe.
Republican Senator Susan Collins, who supported Gorsuch and Kavanaugh and repeatedly assured the public that they would not vote to overthrow Roe, has expressed concern at the draft opinion and feels the judges told her something they later reversed. .
“If this leaked draft opinion is the final decision and this reporting is correct, it would be completely contrary to what Judge Gorsuch and Judge Kavanaugh said at their hearings and at our meetings in my office,” Collins said, noting that the draft opinion is not definitive.
Republican Senator Lisa Murkowksi, who also advocates abortion rights and voted in favor of the Gorsuch and Barrett nominations, said the draft opinion “shakes my faith in the courts at this point.”
Murkowski told reporters on Tuesday: “If the decision goes in the direction that the draft that has been unveiled actually does, it was not the direction I thought the court would go based on statements made about Roe’s settlement. … and set a precedent.”
During his 2017 hearings, Gorsuch said, “Casey is settled case law in the sense that it is a decision of the U.S. Supreme Court.” When Kavanaugh appeared before the Senate Judiciary Committee in 2018, he similarly described Roe as “major Supreme Court precedent that has been reaffirmed many times,” and he defined Casy as “precedent upon precedent” because it confirmed Roe.
But legal snippets show that Gorsuch and Kavanaugh’s comments about Roe and Casey don’t clearly state how they might vote in a case like Dobbs vs. Jackson Women’s Health Organization, raising the prospect that some people may have read only that in their statements. what they wanted to hear.
“When people are nominated to the Supreme Court and they testify in Senate hearings, they are very careful about their language,” said Professor Katherine Franke of Columbia Law School. “Something like ‘established law’ actually has no concrete legal meaning. What it means is that is a Supreme Court decision, and I acknowledge it exists. But other than that it doesn’t make any sense.”
During her Senate hearings, Barrett was arguably even more cautious than Gorsuch and Kavanaugh in her language about Roe. She declined to identify Roe as a “super precedent,” meaning a widely accepted case that is unlikely to be quashed by the court. Instead, she promised that if confirmed, she would adhere to “stare decisis,” the legal principle of deciding cases based on precedent.
However, Barrett’s writings before she came to the Supreme Court gave a clear indication of her thoughts on Roe. In a 1998 article, Barrett and her co-author defined abortion as “always immoral” in the eyes of the Catholic Church. She also signed a 2006 ad describing Roe as “barbaric”.
“I’m sure that both Senators Collins and Murkowski asked pointed questions of all of these nominees, trying to get them to say clearly that they wouldn’t reject Roe v Wade,” Franke said. “Murkowski and Collins may have heard what they wanted to hear to feel better about voting to confirm these nominees when the rest of the world knew very clearly that they were ideologically and legally against abortion.”
For that reason, many progressives expressed little sympathy for Collins and Murkowski, who reacted stunned to the draft advice.
“Murkowski voted for Amy Comey Barrett when Trump himself declared that he was appointing judges to overthrow Roe,” Progressive Congresswoman Alexandria Ocasio-Cortez said Tuesday. “She and Collins betrayed the nation’s reproductive rights when they were exceptionally able to stop the slide. They can’t play victim now.”
Rather than repent, progressives are demanding Collins and Murkowski take action to protect abortion rights.
Both Collins and Murkowski have said they support codification of Roe into law, but that proposal does not have the 60 votes it takes to overcome a Senate filibuster. Progressives are now calling on Collins and Murkowski to support a filibuster carve-out to enshrine Roe’s protections in law.
“To save their legacy, Collins and Murkowski must work with Democratic Senators to do whatever it takes to protect Roe in federal law,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee. “There will be no meaningful action now without a filibuster carveout.”
But Collins and Murkowski have so far given no indication that they would support such a carve-out. If they don’t, the court stands ready to destroy nearly 50 years of precedent and erase the national right to access abortion, even if a clear majority of the country would oppose that decision. A CNN poll published earlier this year found that 69% of Americans oppose the overthrow of Roe, while only 30% support a reversal.
If the court goes through with the draft decision, 26 states are certain or likely to ban abortion. Those bans could force people to travel far from home to reach states where abortion is legal, seek illegal drugs or attempt to terminate a pregnancy in dangerous ways. Many pregnant people will also be forced to carry unwanted pregnancies to term.
And Collins and Murkowski may have nothing to offer Americans but regrets.
Jessica Glenza of The Guardian contributed to this report