Senator Susan Collins on the day before the 2018 hearing with Supreme Court nominee Brett Kavanaugh and his accuser Dr. Christine Blasey Ford Drew Angerer/Getty |
On May 3, 2022, Maine Senator Susan Collins greeted news of the leaked draft of the Dobbs decision with her trademark rue: "If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meeting in my office." When asked for more details, Collins demurred, offering only that her statement "speaks for itself." What Collins said may have been literally true, in that Neil Gorsuch and Brett Kavanaugh—like all Supreme Court nominees for decades now—didn’t explicitly show their hands on major, divisive legal questions during their hearings and congressional rounds. But it was also a breathtaking dodge by Collins, one that laid bare either her profound ignorance or her mendacity—and it’s worth recalling today because Collins and her ilk are once again being put on the spot over reproductive rights, this time with in vitro fertilization. Justices Gorsuch and Kavanaugh, as everyone in Washington (including, surely, Collins) knew at the time of their respective nominations, were practically lab-grown to ascend to the Supreme Court to overturn Roe. That’s precisely why their names were provided to President Donald Trump by the conservative legal movement. Beyond that, Kavanaugh actually did make clear his intentions toward Roe—at least, to legal minds who were paying attention. He told Senator Ted Cruz that when it comes to rights that are unenumerated in the Constitution but considered implicit in the text, "all roads lead to the Glucksberg test." He was referring to Washington v. Glucksberg, in which Chief Justice William Rehnquist held that such unenumerated rights need to be "deeply rooted in this Nation’s history and tradition" to be considered valid. |
In Glucksberg, the specific right being challenged was the right to a physician-assisted suicide. The abortion rights wrought by Roe fall into the same category. So while Kavanaugh may have been speaking in judicial code, it wasn’t that hard to penetrate. "It doesn’t take the brains of a fourth-term United States senator from Maine to figure out what this means if Kavanaugh is confirmed," ThinkProgress’s Ian Millhiser explained at the time. "Judge Kavanaugh will be the fifth vote to kill Roe if he joins the nation’s highest Court." As Millhiser predicted, the "Glucksberg test" was applied in precisely this fashion in the Dobbs decision. Why rehash this history? Mainly because Collins’s prevarication two years ago is how Republicans are going to try to run the post-Dobbs gauntlet in this election year, in an attempt to evade responsibility for the terrors they have unleashed and those they have planned for the future. They will lie, and they will play dumb. The contours of this strategy blew into wide view after the Alabama Supreme Court ruled that frozen embryos are people, throwing the future of in vitro fertilization, or IVF, in the Yellowhammer State and beyond, into doubt. Republicans in Congress rushed out statements in support of IVF, but as TNR’s Ellie Quinlan Houghtaling documented, their sudden interest in preserving IVF was dramatically at odds with their support for the Life at Conception Act, which "hoped to recognize fertilized eggs as children at the federal level in an attempt to ban abortions nationwide"—a measure co-sponsored by 163 Republicans in the House. Indeed, the Alabama ruling was nothing more than a plain reading of similar laws in state law and its constitution, which enshrines fetal personhood in a similar matter. All of these various laws and legislation are the product of the same 50-year project that took down Roe, and which is straightforwardly geared toward a nationwide abortion ban. But the contretemps raised by the ruling has amplified a schism between Republican elites who hope to choreograph a piecemeal rollback of these and other rights, and far-right firebrands outside of Washington who want to bring about this future as instantaneously as possible. As I’ve written before, this tension has led some institutional Republicans to try to "rebrand" the pro-life movement as moderate—rather than hell-bent on banning all abortions. This "rebranding" will, in this campaign year, essentially amount to dodging and weaving. You’re going to see various GOP elites proclaiming support for exceptions and limits, but there won’t be a valid commitment to advancing any such protections. Indeed, North Carolina Republican Nancy Mace spent the week shopping for co-sponsors for a resolution that purports to support IVF, but which, as Business Insider reporter Brian Metzger notes, "doesn’t actually do anything." (My colleague Adrienne Varkiani greeted this news like so: "A resolution that does nothing is peak Nancy Mace.") But what happens in Washington matters less than what happens in the states, where, TNR’s Greg Sargent says, "the true implications of GOP positions on reproductive rights will be harder to evade." After all, it’s the states where the radicals hold levers of power, and their attempts to reassure voters that they’re not actually radical is proving even more ham-handed than Beltway Republicans’: This week, Alabama Republicans put forward a bill purportedly protecting IVF, which automatically repeals itself in 2025. In other words, it secures these rights only until the election is over, after which state lawmakers can get back down to the job of taking them away again. This election year, Republicans will lie endlessly about their abortion positions. That much is certain. The question is whether political reporters will launder Republicans’ extreme positions by accepting at face value the benign, moderate things they say about reproductive freedoms—without adding the all-important context that the GOP is part of a half-century movement dedicated to a wholesale rollback of all abortion rights. That’s how you get an Associated Press story characterizing Donald Trump as some sort of champion for IVF when, given his Supreme Court picks, he’s played the biggest role of any politician in advancing the notion that frozen embryos are people. These GOP lies should be easy to decipher and expose, but as Susan Collins knows, they tend to work like a charm. |
—Jason Linkins, deputy editor |
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