Çhief Justice John Roberts has condemned the leak of a draft supreme court opinion overturning Roe v Wade as a “betrayal”. But for the majority of Americans who support the right to abortion access, the true betrayal was committed by the five justices who initially voted to overturn the landmark case.
That is especially true of the three conservative supreme court justices who were nominated by Donald Trump: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. During their Senate confirmation hearings, each of those three justices was asked about Roe and Planned Parenthood v Casey, the 1992 case that upheld the right to abortion access and could now be overturned as well.
The comments that the three justices made during those hearings are now coming under renewed scrutiny, as they face accusations of having misled politicians and the public about their willingness to overturn Roe.
Republican Senator Susan Collins, who supported Gorsuch and Kavanaugh and repeatedly reassured the public that they would not vote to overturn Roe, has expressed alarm over the draft opinion and a sense that the justices told her something they later reversed.
“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 meetings in my office,” Collins said, while noting that the draft opinion is not final.
Republican Senator Lisa Murkowksi, who also supports abortion rights and voted in favor of Gorsuch’s and Barrett’s nominations, said the draft opinion “rocks my confidence in the court right now”.
Murkowski told reporters on Tuesday: “If the decision is going the way that the draft that has been revealed is actually the case, it was not the direction that I believed that the court would take based on statements that had been made about Roe being settled and being precedent.”
During his 2017 confirmation hearings, Gorsuch said: “Casey is settled law in the sense that it is a decision of the US supreme court.” When Kavanaugh appeared before the Senate judiciary committee in 2018, he similarly described Roe as “important precedent of the supreme court that has been reaffirmed many times”, and he defined Casy as “precedent on precedent” because it upheld Roe.
But legal excerpts say Gorsuch and Kavanaugh’s comments about Roe and Casey did not clearly indicate how they might vote in a case like Dobbs v Jackson Women’s Health Organization, raising the prospect that some people may have read into their statements only what they wished to hear.
“When people are nominated to the supreme court and they testify in Senate confirmation hearings, they are very careful about their language,” said Professor Katherine Franke of Columbia Law School. “Something like ‘settled law’ actually has no concrete legal meaning. What it means is that that’s a decision from the supreme court, and I acknowledge that it exists. But it doesn’t carry any kind of significance beyond that.”
During her Senate confirmation hearings, Barrett was arguably even more careful than Gorsuch and Kavanaugh in her language about Roe. She refused to identify Roe as a “superprecedent”, meaning a widely accepted case that is unlikely to be overturned by the court. Instead she promised that, if confirmed, she would abide by “stare decisis”, the legal principle of deciding cases based off precedent.
However, Barrett’s writings before joining the supreme court gave a clear indication of her thoughts on Roe. In one 1998 paper, Barrett and her co-author of her defined abortion as “always immoral” in the view of the Catholic church. She also signed off on a 2006 advertisement that described 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 clearly say that they would not overrule Roe v Wade,” Franke said. “Murkowski and Collins maybe heard what they wanted to hear in order to feel better about voting to confirm these nominees, when the rest of the world knew quite clearly that they were ideologically and legally opposed to abortion.”
For that reason, many progressives expressed little sympathy for Collins and Murkowski as they reacted with bafflement to the draft opinion.
“Murkowski voted for Amy Coney Barrett when Trump proclaimed himself that he was appointing justices specifically to overturn Roe,” progressive congresswoman Alexandria Ocasio-Cortez said Tuesday. “She and Collins betrayed the nation’s reproductive rights when they were singularly capable of stopping the slide. They don’t get to play victim now.”
Rather than showing remorse, progressives are demanding that Collins and Murkowski take action to protect abortion rights.
Both Collins and Murkowski have said they support codifying Roe into law, but that proposal does not have the 60 votes necessary to overcome a Senate filibuster. Progressives are now calling on Collins and Murkowski to support a filibuster carveout to enshrine the protections of Roe into law.
“To salvage their legacy, Collins and Murkowski must join with Democratic senators to do whatever is necessary to protect Roe in federal law,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee. “No meaningful action will happen without a filibuster carveout now.”
But Collins and Murkowski have so far given no indication that they would support such a carveout. Unless they do, the court stands ready to overturn nearly 50 years of precedent and erase the national right to abortion access, even though a clear majority of the country would oppose that decision. A CNN poll released earlier this year found that 69% of Americans are against overturning Roe, while just 30% support a reversal.
If the court follows 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 medication illicitly or attempt to terminate pregnancy through dangerous means. Many pregnant people will also be forced to carry unwanted pregnancies to term.
And Collins and Murkowski may have nothing to offer Americans but regret.
The Guardian’s Jessica Glenza contributed to this report