WASHINGTON — Maine Senator Susan Collins is trying to walk a political tightrope on abortion rights — this time, one of her own making.
The Supreme Court’s recent decision not to temporarily block a Texas law that bans abortion after about six weeks of pregnancy has renewed attention on the 2018 vote by Collins, a centrist Republican and abortion-rights supporter, to confirm Justice Brett Kavanaugh and tip the court’s balance further to the right.
Now, as Democrats push legislation to codify the court’s landmark 1973 Roe v. Wade decision legalizing abortion and prohibiting states from restricting the procedure before the viability of a fetus, Collins is attempting to navigate an awkward path that offers a preview of the difficulty her party could face in next year’s midterm elections distancing itself from an abortion law that polls show is unpopular with the electorate.
Although she supports codifying Roe v. Wade, Collins is not backing the Democrats’ Women’s Health Protection Act, instead trying to craft her own bill to accomplish the same goal. And while she publicly blasted the Texas law last weekend as “extreme, inhumane, and unconstitutional” and opposed the court’s decision not to block it, Collins said she doesn’t regret her vote for Kavanaugh, noting the court has yet to rule on the law’s constitutionality.
“Why aren’t you asking me do I have any regrets for voting for [Justice] Elena Kagan, who I voted for, or Sonia Sotomayor, who I voted for, or John Roberts, who I voted for?” she told the Globe this week.
“I voted for three of the judges who voted to stay the law and I voted for judges who voted for the law not to be stayed and I voted against a justice who voted for the law not to be stayed,” she said. “If you read the opinion . . . it said that the Texas law raises serious constitutional questions. This is not over yet.”
Collins’s latest maneuvering frustrates abortion rights groups and Democrats, who failed to defeat her in her reelection bid last year despite the fury on the left caused by her pivotal vote to confirm Kavanaugh.
“There’s all of this sort of fancy footwork on her part to try to claim to be pro-choice while doing absolutely nothing to make real her alleged commitment to reproductive rights,” said Kristin Ford, acting vice president of communications and research at NARAL Pro-Choice America.
The Texas law and pending Supreme Court decisions ensure that abortion will be a major issue in the 2022 elections, she said. “Voters increasingly understand how much is at stake here,” Ford said. “And as abortion is pushed further or entirely out of reach in multiple states, the stakes are only going to continue to grow.”
(Late Wednesday, a federal judge blocked enforcement of the Texas law, ruling on a request by the Biden administration to first let legal challenges to the statute play out.)
Neither the Democrats’ Roe v. Wade bill nor any alternative bill Collins drafts is likely to get the 60 votes needed to overcome an expected Republican filibuster and pass in the Senate. Although abortion-rights supporters are pushing for a filibuster exemption for the bill, that’s also unlikely.
And while Collins handily beat back a Democratic challenge in 2020 and does not face reelection until 2026, the renewed focus on abortion might cause some political headaches for the fifth-term senator, said Mark D. Brewer, a political science professor at the University of Maine.
“The biggest problem for Collins . . . is that it reminds people of her vote to confirm Kavanaugh,” he said. “The farther the party moves to the right nationally, the bigger the complication that presents for her.”
Kavanaugh’s confirmation gave the court a more solid 5-4 conservative majority, which expanded to 6-3 when the Senate confirmed Amy Coney Barrett last year to replace liberal Ruth Bader Ginsburg. Collins was the only Republican to vote against Barrett.
Collins said her opposition was not based on Barrett’s record but simply because it was inconsistent to confirm her shortly before the 2020 election when the Republican-controlled Senate had refused to consider President Barack Obama’s nomination of Merrick Garland in 2016 because it was a presidential election year.
The additions of Kavanaugh and Barrett fueled fears by abortion rights supporters that the court would overturn Roe v. Wade. The decision not to halt the Texas law sent those fears into overdrive.
Called the Texas Heart Beat Act, the law bans abortions after a fetal heartbeat is detected, which usually happens at about six weeks and before many women know they’re pregnant. The law went into effect on Sept. 1 and the Supreme Court voted 5-4 not to grant a stay.
The court’s majority, which included Kavanaugh and Barrett, acknowledged there were “serious questions regarding the constitutionality of the Texas law.” But they decided not to grant a stay because of the law’s unique approach in barring state officials from enforcing it in favor of deputizing private citizens to sue anyone involved in an abortion except the patient. Chief Justice John Roberts joined the court’s three liberals in saying they would have blocked the law from taking effect while legal challenges work through the system.
In the wake of the Texas decision, and with the Supreme Court set to hear arguments in December on a restrictive Mississippi abortion law, Democrats pushed the Women’s Health Protection Act through the House on Sept. 24. Every House Republican along with one Democrat opposed it. Senator Richard Blumenthal, a Democrat from Connecticut, sponsored an identical bill in the Senate that is cosponsored by all but two members of the Democratic caucus — and no Republicans.
Collins said she has concerns about the Democrats’ bill and is crafting her own that would codify the right to an abortion in Roe v. Wade and reaffirmed by the 1992 Supreme Court decision in Planned Parenthood v. Casey.
“My bill is a straightforward codification of the principals in the Roe and the Casey decisions,” Collins said. “It preserves the long established ability for health care providers who have moral or religious objections to performing abortions. The bill in the House and the Blumenthal bill, which is identical in the Senate, does not do that.”
A Collins spokeswoman said the Democratic bill’s language “calls into question basic conscience protections” in federal laws, including the 1993 Religious Freedom Restoration Act.
Collins said she is working on her bill with two Democrats and a Republican, neither of whom she has named. Alaska Senator Lisa Murkowski, a Republican who also supports abortion rights, said she has had discussions with Collins about a bill codifying Roe v. Wade and said she shared some of the concerns about the Democratic legislation.
But Ford said those concerns are unfounded.
“The Women’s Health Protection Act does not force or require providers to provide abortion care. All it does is allow providers to provide abortion care,” she said. “Senator Collins is once again engaging in smoke and mirrors tactics to try to obscure the fact that she consistently refuses to actually stand up for reproductive freedom.”
Blumenthal said he’s heard rumors of Collins’s concerns with the bill and is “more than happy to consider constructive suggestions.” But he said it was “flatly absurd” to say the legislation would force health care providers to perform procedures they object to on religious or personal grounds.
“I think we have a pretty good bill,” he said, “and people who are genuinely pro-choice I think will support it.