Sen. Susan Collins’ vote to confirm Brett Kavanaugh to the U.S. Supreme Court drew praise – and criticism. Jose Luis Magana/Associated Press

When Maine Republican Sen. Susan Collins voted to put Brett Kavanaugh and Neil Gorsuch on the Supreme Court, she cited their private pledges to her to respect the court’s landmark Roe v. Wade abortion ruling.

But on Tuesday she said those assurances are “completely inconsistent” with a leaked draft opinion showing both conservative justices would vote to overturn the precedent.

“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 in a written statement issued Tuesday morning.

Her decisive role in placing the conservative justices on the court – Collins was the 50th and deciding vote on Kavanaugh in the Senate – makes her ripe for backlash from local and national abortion rights groups who feel betrayed by someone who has positioned herself as a moderate who supports abortion rights.

If Collins believes Gorsuch and Kavanaugh lied to her, she must lead the charge calling for their immediate impeachment, said Marie Follayttar, the director of Mainers for Accountable Leadership, a local social justice group that opposed their nominations.

“We demand that she leads the charge calling for their immediate impeachment,” Follayttar said in a written statement. “We cannot let public trust in our justice system, the final check and balance of our democracy, become eroded.”

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More than 230 Maine lawyers had warned Collins that Kavanaugh’s judicial record had demonstrated ideological hostility to Roe, and that he would cast anti-abortion votes, Follayttar said. More than 100 Maine attorneys warned Collins about Gorsuch, too, but Collins wasn’t persuaded.

“We strongly urge her to reconsider who guides her during Supreme Court nominations,” Follayttar said.

Nicole Clegg, the senior vice president of public affairs for the Planned Parenthood Maine Action Fund, posed a question for Collins during a news conference at Planned Parenthood of Northern New England’s Portland clinic on Tuesday. “If we’re thinking about half the population losing this constitutional right, what is she going to do, what is the Senate going to do, to protect these people?”

A TIPPING POINT

Collins’ Kavanaugh vote was the tipping point for Lisa Bogdahn, 60, an independent-minded Democrat.

“I used to vote for her,” Bogdahn said. “I don’t vote for her anymore.”

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Bogdahn was one of many moderates who abandoned Collins over Kavanaugh in the 2020 election. A nine-point win over former Maine House Speaker Sarah Gideon of Freeport earned Collins the record-setting fifth term she was seeking, but not by her usual resounding margin.

Collins did not respond to requests for interviews Tuesday.

Collins made it clear at the time of the confirmation that she put great faith in Kavanaugh’s pledge to honor Roe v. Wade as legal precedent that must be constitutionally heeded, not just court policy or as some kind of goal or aspiration.

“There has also been considerable focus on the future of abortion rights based on the concern that Judge Kavanaugh would seek to overturn Roe v. Wade,” Collins said during her October 2018 floor speech on Kavanaugh’s confirmation. “Protecting this right is important to me.”

She went on: “To my knowledge, Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article III of our Constitution itself. He believes that precedent ‘is not just a judicial policy … it is constitutionally dictated to pay attention and pay heed to rules of precedent.’ In other words, precedent isn’t a goal or an aspiration; it is a constitutional tenet that has to be followed except in the most extraordinary circumstances.”

Collins said that Kavanaugh told her “a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked” because a judge might want to, and that honoring precedent is essential to maintaining public confidence in the court.

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She concluded her comments about Kavanaugh’s impact on abortion access in the U.S. with this: “When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed it was wrongly decided, he emphatically said ‘no.’ ”

THE CAVEAT

In that meeting, however, Kavanaugh appears to have given himself the out that he is now exercising.

According to Collins, Kavanaugh told her that someone who believes the importance of precedent has been rooted in the Constitution would follow it except in those rare circumstances where a decision is “grievously wrong” or “deeply inconsistent with the law.”

Justice Samuel Alito used similar language – “Roe was egregiously wrong from the start” – in the draft report he authored that Kavanaugh and Gorsuch agreed with. Justice Clarence Thomas used that exact language last year when he opposed the court’s striking down a Louisiana anti-abortion law.

Maine’s other U.S. senator, independent Angus King, was more suspicious of Kavanaugh than Collins.

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“He may not vote directly to repeal Roe – though I think his record indicates that he will – but he will almost certainly vote to whittle away its protections, leaving not much more than a hollow shell,” King said in his Senate floor speech explaining why he would vote against Kavanaugh’s confirmation.

King worried Kavanaugh would restrict the powers of the national government to secure voting rights, control partisan gerrymandering, reform campaign finance, promote healthcare access and protect the environment. On Tuesday, he voiced concern for same-sex marriage and interracial couples, too.

In a statement, King said Congress must be ready to “take legislative action to enshrine Roe into law.”

CODIFYING ABORTION PROTECTIONS

Collins, who in February introduced legislation to codify the abortion protections in Roe v. Wade and Planned Parenthood v. Casey, noted in her written statement on Tuesday that the public will not know each justice’s decision and reasoning until the Supreme Court officially announces its opinion.

Collins joined with Alaska Republican Sen. Lisa Murkowski to introduce the Reproductive Choice Act as an amendment to the Women’s Health Protection Act, which they said would protect abortion access and healthcare workers with religious objections from performing abortions.

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“I support the abortion rights established by Roe v. Wade and affirmed by Planned Parenthood v. Casey,” Collins said at the time. “Our legislation would enshrine these important protections into law without undercutting statutes that have been in place for decades.”

Nicholas Jacobs, assistant professor of government at Colby College, said he will be watching Collins closely over the next couple weeks to see if she makes any meaningful movement toward fulfilling her promise to codify a right to an abortion in federal law if Roe v. Wade is overturned.

“I don’t think it’s out of the realm of possibilities at all,” Jacobs said. “Even if she’s not feeling the re-election pressure, there’s actually an opportunity here to leave a legacy – to be the champion of something she has been a supporter of.”

With pundits predicting Republican gains this fall, the best chance of accomplishing that, Jacobs said, is while Democrats control both the Senate and House. That means Collins, in year two of a six-year term, would have to act fast, since Congress will likely break early in an election year, he said.

“There very well may be a majority even in the Senate for this type of issue,” Jacobs said. “If people want to put the pressure on Collins and make her live up to the promise she made … it’s got to be done quick. And she probably has to start working on that before we know what the opinion is.”

Staff Writers Randy Billings and Emily Allen contributed to this report.

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