The Centrist Independent Voter policy position on abortion rights is that if Roe/Casey is overturned, we should attempt to re-establish those same rights legislatively. The position is also that we should not take that opportunity to either expand or contract those rights.
Susan Collins(R) and Lisa Murkowski (R) have jointly introduced legislation in the Senate to accomplish exactly this objective. This link also provides their defense of this legislation.
If the Democrats in the Senate were to embrace this proposal, they might well be able to muster the votes necessary to overcome the filibuster. In addition to Collins and Murkowski, Shelley Moore Capito (R) is pro-choice. I believe seven more Republicans can be found who would settle for this legislation rather than risk having the Senate rules changed to eliminate the filibuster and seeing the Democratic version of this legislation pass and seeing the Court packed with liberal justices.
Remember some conservatives objected to the Roe decision because it represented an overreach by an activist court rather than because of the content of the decision. Reversal of Roe combined with a legislative answer to the issue constitutes victory for these judicial conservatives.
Democrats who want to use this issue to end the filibuster and pack the Court should remember that they will not always be in control.
Democrats who turn down this compromise, because they hope to gain a political advantage in the mid-terms, should remember that their refusal to even consider the compromise will hurt them. They should also remember that while support for abortion rights similar to those laid out in the Collins/Murkowski legislation is widespread, support for unlimited abortion rights is far less popular.
A final reason for Democrats to embrace the Collins/Murkowski bill is that it would make a Supreme Court decision on the issue currently before the court moot. If the Collins/Murkowski bill became law, the Mississippi law before the Court would clearly be illegal. The Court does not issue decisions if the issue is moot. That would address the concern that the Alito draft decision, if adopted, would set a precedent that would undermine other court decisions such as contraception and same sex marriage rights. If the Democrats wait until the Supreme Court delivers their final decision they will have missed this opportunity.
I don’t agree with the conclusions presented in the introduction. I do think that the Court did have the choice of holding that Roe and Casey were settled law and that therefore the Mississippi law was unconstitutional. They could also have decided that, in line with Casey, the Mississippi law did not constitute an “undue burden” and was therefore acceptable.
How Broad are the Implications of this Decision, if Adopted?
I do agree with the author that this draft decision, if adopted, would not spell the end of other Supreme Court decisions on sexual relations, contraception, and marriage. All of those decisions addressed due process and individual liberty in situations that did not potentially affect an “unborn life.”
Where Do We Go From Here?
If this decision is adopted, the correct course of action is not packing the Court or eliminating the filibuster. Packing the Court will only lead to an ever larger Court, as each side gains enough power to add more Justices who favor their views. Breaking the filibuster means national legislation that will flip back and forth as each side gains a legislative majority and the Presidency.
The correct course of action is, first, to get busy at the the state level and pass legislation that secures some level of abortion rights. On this effort a willingness to compromise would be helpful. The second course of action is for Democrats to realize that they could have a solid 60+ majority in the Senate, if they became a true center left party and ignored the wishes of the progressive wing of the party. Once that is accomplished, we can have a national legislative compromise on the issue of abortion that securely establishes a reasonable degree of protection for abortion rights. This will probably resemble a legislative version of Roe.
It was good to hear this morning that Sen. Susan Collins (R) of Maine will be supporting the confirmation of Judge Ketanji Brown Jackson to the U.S. Supreme Court.
As mentioned before on this blog, Judge Jackson is probably left of center. However, in the universe of left of center judges, one would be hard put to find a more well-reasoned set of answers to the questions posed to her during the hearings.
That was, apparently, also true during her hearings for confirmation to the U.S. Appeals Court. She was confirmed, in that case, by a bi-partisan vote of 53-44. Let’s hope that the current vote will be even more bi-partisan.
Update: When the vote was cast Murkowski and Romney joined Collins in voting to confirm Ketanji Brown Jackson to the Supreme Court.