If your best hope for keeping abortion safe and legal in the United States was the continued employment of an 81-year-old Supreme Court justice, or a rebellion led by a moderate Republican senator from Maine, you had a bad week.
Justice Anthony Kennedy announced his retirement last Wednesday, giving President Trump a chance to nominate his second anti-abortion judge to a lifetime seat on the nation’s highest court, building a five-vote majority on the issue that could last for decades.
And Maine’s Sen. Susan Collins, one of the very few people in the world who has the power to stop him, announced Thursday that she does not intend to use it.
Collins says that abortion rights is “settled law,” and she doesn’t expect that to change with a Supreme Court packed with advocates of judicial restraint and the doctrine of “stare decisis” (the idea that courts should allow prior decisions to stand).
I guess that could happen, but I wouldn’t count on it.
The Supreme Court found in 1973 that women have a fundamental right to end a pregnancy, but states have kept passing measures that make services harder to access. Sometimes these restrictions were slapped down by the Supreme Court, in recent years thanks to a vote from Kennedy. A Trump court wouldn’t have to overturn a precedent to outlaw many abortions. It could simply let states chip further away at the constitutional protections.
That means that governors and legislators in all 50 states will have a lot to say about what goes on inside a woman’s body, and that should move reproductive rights into the forefront of this year’s political campaigns, like the race for Maine governor.
Of this year’s candidates, Democrat Janet Mills has the longest record and clearest position on abortion rights.
Before the June 12 primary, she taped an interview with Planned Parenthood, an organization that gives her a 100 percent rating as a legislator and attorney general. Mills said she considered “access to full reproductive health care is vital to the independence and integrity of women and girls in the state of Maine and everywhere in this country.”
Republican Shawn Moody used to say abortion was a matter of personal choice, but now he’s firmly planted on the other side. His website lists establishing “a pro-life culture in Maine” as one of his top issues, and he aligns himself with the Maine Right to Life Committee agenda, which includes making it harder for a minor to get an abortion without permission from her parents and making doctors read specific warnings to their patients.
Independents Alan Caron and Terry Hayes have no mention of abortion or women’s health issues on their websites, but they may have to add one as it becomes clear that part of the next governor’s job could include deciding if a woman’s right to prevent or terminate a pregnancy in Maine should be limited.
What kind of issues might the next governor face? Since Trump was elected, states have become bolder about passing laws that could conflict with Roe v. Wade, the landmark opinion that established the right to an abortion, especially during the first three months of pregnancy.
Just this year, Mississippi passed a law that bans all abortions after 15 weeks. Iowa outlaws abortions after a physician can hear a fetal heartbeat, which could be as early as six weeks. Kentucky passed a law in April that limits some procedures after 11 weeks, and Indiana requires doctors to collect personal information of all abortion patients and send it to the state.
And there are existing laws in other states that could be introduced in Maine.
Providers in five states are required to deliver “counseling” about the unproven link between abortion and breast cancer. In 11 states, private insurance plans cannot pay for abortion except in cases when a mother’s life would be in danger. In 14 states, women have to make two visits to a clinic, which could be hundreds of miles from where they live, before an abortion can be performed.
For a long time, candidates for office in Maine have been able to get away with saying they were “pro-choice” or “pro-life” or the always popular “personally pro-life” if they want to have it both ways. Now, they will have to be ready to get into the details of bills that they are likely to see in real life, where there are passionate supporters on both sides.
Should an employer with a religious objection be allowed to refuse to pay for health insurance that covers birth control or abortion?
May a nurse practitioner administer abortion pills in a rural clinic where there is no doctor available?
May a judge permit a minor to get an abortion without her parents’ consent, as is currently allowed by Maine law?
Letting states decide how many hoops a woman should have to jump through if she wants an abortion may sound different than overturning Roe v. Wade, but depending on where you live, it could have much the same effect.
For the next few months, all eyes will be on the nation’s capital, as Trump’s nominee heads for confirmation.
But no one should take their eyes off the races here in Maine, because starting next year a lot of the action will be in Augusta, not Washington.
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