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Friday, July 06, 2018

How Susan Collins avoids being "disappointed" as abortion rights are eliminated

Kevin Drum predicts the Susan Collins path with respect to the confirmation of Justice Kennedy's successor (aka, the fifth vote to eliminate constitutional protection for a woman's right to terminate a pregnancy): Trump nominates a Justice certain to overrule Roe; Collins is convinced after an hour-long conversation that the nominee has "undying respect" for stare decisis; Collins declares herself satisfied and votes to confirm; eighteen month later, the Court overrules Roe; "Collins will announce that she’s disappointed." I have been saying much the same thing, which is why media coverage and interviews about Collins support for abortion rights are so mind-numbing, because it pretends that something other than what Drum says is a possibility.

But this piece by Leah Litman offers another way for Collins to avoid disappointment, by offering two paths by which the Court can eliminate the constitutional right to abortion without uttering the words "Roe is overruled." The first is by finding that the various state restrictions on abortion (short of an outright ban or criminalization) do not impose undue burdens and thus are subject only to rational scrutiny, which they survive. The second is by expanding the government interest in not "facilitating" abortion, which could be taken to its logical extreme that "allowing abortion under law facilitates abortion," so the state is justified in a ban. Either approach would eliminate abortion in many states and make the "right" impossible to exercise for many people, but without uttering the magic words.

And Collins will not be "disappointed." She can say, "well, the new justice did not overrule Roe, which is what I was concerned with." And she will not be smart enough (or care enough) to know what really happened.

Posted by Howard Wasserman on July 6, 2018 at 08:51 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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