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A GOP governor bolstered Maine abortion rights. If Roe is gutted, those protections will stand — for now

This artist sketch depicts Center for Reproductive Rights Litigation Director Julie Rikelman speaking to the Supreme Court, Wednesday, Dec. 1, 2021, in Washington.
Dana Verkouteren
This artist sketch depicts Center for Reproductive Rights Litigation Director Julie Rikelman speaking to the Supreme Court, Wednesday, Dec. 1, 2021, in Washington.

This week: The trajectory of the abortion battle as Maine braces for Supreme Court’s decision; Collins, Kavanaugh and codifying Roe; Gideon’s campaign cash; lawmaker who fought pandemic precautions quits.

In 1994, Maine Gov. John McKernan spearheaded a bill that reaffirmed a woman’s right to end a pregnancy until fetal viability, or roughly 23 weeks.

At the time, The Reproductive Privacy Act was framed as a response to a spate of violence by anti-abortion activists that included the slaying of a doctor in Florida and the attempted murder of a Kansas doctor by a woman accused of multiple attacks at abortion clinics in four states. One attack involved the use of napalm, which was used in bombs during the Vietnam War. While the anti-abortion fervor didn’t reach that level in Maine, McKernan and state lawmakers were worried that it could have. The Bangor Daily News described anti-abortion protests here as “unrelenting.” There were fears that the roughly 80 doctors who performed the procedure, along with their patients, would be intimidated against exercising a right that McKernan described as constitutionally enshrined.

Rebecca Conley
Maine Public

“The question is, how far has that harassment gone and are people’s constitutional rights being infringed?” Maine’s Republican governor said, according to news reports.

Today, that 1994 law pushed by McKernan will ultimately allow Maine women to legally seek an abortion even if conservative justices on the U.S. Supreme Court overturn Roe v. Wade, the 1973 landmark ruling that has since barred states from passing laws that outlaw abortion.

About 20 states protect access to abortion the way Maine does. Twenty-four others could soon ban the procedure, including 12 states that have laws that expressly ban abortions if Roe is overturned.

Or when Roe is overturned.

This week, the Supreme Court appeared poised to uphold a Mississippi law that outlaws abortions after 15 weeks of pregnancy. Such a ruling would be in direct conflict with Roe. At least five of the six conservative justices appear willing to overturn the 48-year-old decision entirely. That could leave abortion access at the discretion of state legislatures and governors.

That would also mean that Maine’s Reproductive Privacy Act would protect access to abortion — at least for now.

“In the current climate, it certainly is a relief to know that the Reproductive Privacy Act protects Mainers’ right to abortions,” wrote Maine Family Planning CEO George Hill in the Portland Press Herald last year. “But state statutes are less secure than protections enshrined in state constitutions. State law can be changed or repealed in the course of a single four- to six-month legislative session.”

He added, “We cannot take for granted that Maine’s state legislature currently comprises many reproductive champions who reflect real Maine values. We must work together to keep it that way.”

Maine Democrats are now making a similar argument. They argue that the right to an abortion can only be preserved by electing Democrats who have made protecting and expanding access a priority.

That includes Democratic Gov. Janet Mills, who asserted her commitment to the cause during Wednesday Supreme Court arguments.

“I hope the Court reaffirms a woman’s right to choose, but if it does not, you can be damn sure that I will stand in the way of every and any threat to undermine, roll back, or outright eliminate access to reproductive health care here in Maine,” tweeted Mills, who next year will face former Republican Gov. Paul LePage, a threat to abortion rights in the view of advocates.

The Maine Democratic Party later issued a press statement describing Mills as “the last line of defense for reproductive rights in Maine,” asserting that LePage supported overturning Roe during a 2018 interview on Portland radio station WGAN.

Democrats, locally and nationally, have made similar pronouncements, and there’s a debate over whether a repeal of Roe will energize a party currently facing an ominous electoral landscape in next year’s midterm elections. Naysayers argue that abortion was on the ballot in 2016 when Donald Trump made nominating conservative judges who would overturn Roe a centerpiece of his successful presidential campaign, yet it failed to motivate voters to support Hillary Clinton. They also note that Democrats currently have control of the White House and Congress, yet they still cannot muster the votes to nuke the Senate filibuster and codify Roe in federal law.

At the moment, abortion as a Democratic base motivator is a theoretical discussion. However, the real-world implications of overturning Roe and nearly half a century of abortion rights precedent are not. Allowing abortions in half the states and restricting them in the other half will further fragment access to the procedure. The BDN recently reported that Maine abortion providers are already seeing patients from Texas, which earlier this year passed a law that all but bans the procedure. The law has remained in place because the Supreme Court declined to suspend it amid a legal challenge.

While Maine has a longstanding tradition of bipartisan support for abortion rights, the issue has become increasingly partisan and a near litmus test for party affiliation. Pro-life Democrats are rare now. So are pro-choice Republicans.

“The Maine GOP is fighting to protect the lives of the unborn, but we can not do it alone,” Maine GOP chairwoman Demi Kouzounas wrote in a fundraising email shortly after Supreme Court declined to stay the Texas abortion ban. “We NEED your help. If you are pro-life, DONATE today to recruit, train, and elect candidates who will fight for the unborn and stand up to Governor Mills her friends’ pro-abortion stance.”

In this Dec. 13, 2012 file photo, retiring Sen. Olympia Snowe, R-Maine, accompanied by her husband, former Maine Gov. John "Jock" McKernan, Jr., speak on Capitol Hill in Washington after giving her farewell speech in the Senate chamber.
Jacquelyn Martin
In this Dec. 13, 2012 file photo, retiring Sen. Olympia Snowe, R-Maine, accompanied by her husband, former Maine Gov. John "Jock" McKernan, Jr., speak on Capitol Hill in Washington after giving her farewell speech in the Senate chamber.

As NPR’s Nina Totenberg reported earlier this week, there’s some evidence that it was actually Roe v. Wade -- a 7-2 decision by a Supreme Court with six justices appointed by Republican presidents, including four by President Richard Nixon -- that put abortion on its current political trajectory.

Former U.S. Sen. Olympia Snowe of Maine and her husband, McKernan, appeared to support a different trajectory. In 2000, they tried to remove anti-abortion language from the national GOP’s platform.

The effort failed at the RNC convention in Philadelphia. U.S. Sen. Susan Collins supported Snowe’s move to strike the anti-abortion language, but she told the Portland Press Herald at the time that she understood why it failed to win even a majority of Maine delegates: It was destined to lose, she said, because most of the national delegates opposed abortion.

Collins, Kavanaugh and 'codifying' Roe v. Wade

Twenty-one years after her former Senate colleague’s failed attempt to change the national GOP narrative, Collins is even more in the minority within her party on abortion.

There are 50 Republicans in the U.S. Senate. Collins is one of just two, alongside Alaska’s Sen. Lisa Murkowski, who have a track record of supporting women’s right to access abortion.

But abortion rights advocates say Collins’ pivotal vote on Supreme Court Justice Brett Kavanaugh greatly undermined their cause. After viewing her as one of the few Republican allies (or at least friendlier faces) for years, national groups like Planned Parenthood and Emily’s List spent millions of dollars trying to defeat Collins in 2020.

So no surprise, Wednesday’s oral arguments once again focused attention on Collins. Left-leaning commentators have been particularly scathing in their post-SCOTUS missives aimed at the Maine Republican.

“With Roe in jeopardy, Susan Collins has some explaining to do,” blared a headline on the blog for MSNBC’s Rachel Maddow.

“Susan Collins Said Kavanaugh Called Roe ‘Settled Law.’ She Should Have Heard Him in Court Today,” read another one in Mother Jones.

During Kavanaugh’s confirmation process, Collins repeatedly cited the nominee’s statements to her and other senators that Roe v. Wade was “settled law.”

“I could not vote for a judge that had demonstrated hostility to Roe v. Wade because it would indicate a lack of respect for precedent,” Collins said during a 60 Minutes interview. “What Judge Kavanaugh told me . . . is that he views precedent not just as a legal doctrine but as rooted in our Constitution, and he reveres our Constitution.”

Sen. Susan Collins, R-Maine, meets with Supreme Court nominee Judge Brett Kavanaugh at her office, before a private meeting on Capitol Hill in Washington on Tuesday, Aug. 21, 2018.
Jose Luis Magana
Sen. Susan Collins, R-Maine, meets with Supreme Court nominee Judge Brett Kavanaugh at her office, before a private meeting on Capitol Hill in Washington on Tuesday, Aug. 21, 2018.

Abortion rights’ groups dismissed Kavanaugh’s statements at the time, saying his judicial record clearly demonstrated his willingness to rein in Roe.

And during Wednesday’s oral arguments, Kavanaugh repeatedly cited other instances where the high court set aside its reverence for precedent, overturning rulings on “separate but equal” schools, the concept of one person, one vote and other crucial issues.

In one exchange with Mississippi Solicitor General Scott Stewart, Kavanaugh said allowing Mississippi’s law banning abortions after the 15th week of pregnancy would effectively allow states to set their own abortion policies.

“As I understand it, you are arguing that the Constitution is silent and therefore neutral on the question of abortion, in other words that the Constitution is neither pro-life nor pro-choice on the question of abortion, but leaves the issue for the states or perhaps the Congress to resolve in the democratic process,” Kavanaugh said.

Of course, Supreme Court justices don’t always vote along the same lines as their questions suggest. And it is possible that the final, majority decision does not dismantle Roe. But abortion rights’ groups as well as veteran Supreme Court watchers interpreted Kavanaugh’s statements and the lines of questioning from the five other conservative justices as signs that the Roe precedent was in trouble.

For her part, Collins hasn’t said much about the Wednesday’s hearing or Kavanaugh’s potential change of heart on whether Roe was “settled law.”

She told reporters at the Capitol on Wednesday that she hadn’t watched the arguments yet and, according to news reports, responded “I’m for Roe” when asked if she was concerned about the future of Roe.

Maine Public requested an interview with Collins on Thursday, but her office said the senator wouldn’t comment on the issue until the court’s decision, likely in the spring.

Collins’ office did generate headlines, both locally and nationally, when her spokeswoman said the senator believes the protections afforded by Roe and the Planned Parenthood v. Casey decision “should be passed into law.”

In other words, Collins is again signaling that she would support “codifying” abortion rights to make clear – via the law books rather than the U.S. Constitution – that women have a federal right to access abortion. Such a federal edict would hypothetically supersede state laws attempting to outlaw or severely restrict abortion.

“She has had some conversations with her colleagues about this and is open to further discussions,” spokeswoman Annie Clark said in a statement to the press.

This wasn’t really new news, however, at least not up here.

Collins told Maine media back in September that she had talked with colleagues working on codifying Roe and that “I would support such legislation.”

But Democrats were quick to point out that the House passed a bill earlier this year to codify Roe. Yet Collins has already signaled her opposition to the Democrats’ Women’s Health Protection Act, a fact that Clark reiterated this week.

“Unfortunately, the House Democrats’ bill goes far beyond codifying Roe and Casey,” Clark said. “For example, their legislation would severely weaken protections afforded to health care providers who refuse to perform abortions on religious or moral grounds.”

Of course, as noted above, Democrats are already campaigning on the abortion issue headed into the 2022 elections.

Regardless of which Roe codification bill came up for a vote in the Senate, the odds of either becoming law appear negligible right now. That’s because, as mentioned earlier, 48 of the Senate’s 50 Republican senators are abortion opponents, and Democrats would need 60 votes to even bring it up for a vote under the current Senate cloture rules, aka the Senate filibuster.

Democrats, including Maine’s Rep. Chellie Pingree, see this as one more reason to end the filibuster.

“The Senate must pass this crucial legislation – even if that means abolishing the filibuster to do so,” Pingree, a co-sponsor of the Women’s Health Protection Act, said in a statement. “We cannot and will not go back to the days when women weren't trusted to decide their own future.”

But Collins also opposes eliminating or dramatically changing the filibuster rules. And so do some Democratic senators in a chamber where Democrats only hold a majority because Vice President Kamala Harris can cast the tie-breaking vote.

Gideon shares leftover campaign largess

Meanwhile, Collins’ Democratic opponent during the 2020 race, former Maine House Speaker Sara Gideon, announced plans this week for some of the millions of dollars that were still sitting in her campaign bank account.

Gideon donated $3.5 million to Maine Equal Justice for a new program, called the Build HOPE Project, that aims to provide financial assistance to lower-income parents or caregivers pursuing postsecondary degrees or certifications. She sponsored a bill in 2018 creating the Higher Opportunity Pathways to Employment (HOPE) program within the state, but the fund through the nonprofit Maine Equal Justice will supplement that financial aid for some families.

The race between Gideon and Collins shattered every campaign spending record in Maine, with the two candidates and outside groups spending more than $200 million. Gideon’s campaign outspent Collins 2-to-1 but the Democrat still captured 42% of the vote compared to 51% for the incumbent.

Gideon ended the campaign with roughly $15 million still in her coffers.

Federal law allows candidates to hold onto leftover funds for future campaigns, transfer them to other candidates or donate them to nonprofit organizations. Former candidates cannot spend the money on personal uses.

Campaign finance reports show Gideon spent about $2 million in 2021 prior to the $3.5 million donation announced this week. Some of it went to political parties and candidates – such as New Hampshire Democratic Sen. Maggie Hassan – while some went to nonprofits or to consulting and legal firms.

And what else is Gideon up to these days?

She has been a “resident fellow” at the Kennedy School Institute of Politics at Harvard University. According to Harvard, resident fellows are prominent elected officials, journalists, public servants and activists who “spend a term at Harvard . . . to share their experiences with students exploring important public issues.”

Gideon’s fellow fellows for the Fall 2021 semester are senior Obama and Biden campaign staffer Ashley Allison, former Republican U.S. Rep. William “Mac” Thornberry of Texas, George W. Bush Institute executive director Holly Kuzmich, Fox News political journalist Arnon Mishkin and MSNBC journalist Trymaine Lee.

Foe of COVID precautions resigns

A Republican member of the Maine House of Representatives who fought State House mask mandates and organized a protest last year against Gov. Mills' efforts to fight the pandemic has resigned.

Rep. Chris Johansen's resignation was effective Nov. 19, according to a letter he sent to Democratic House Speaker Ryan Fecteau that same day.

Johansen, from Monticello, kept a relatively low profile during his three terms until the onset of the pandemic, when he made several headlines for leading the first demonstrations against the governor's pandemic restrictions in 2020 and for his involvement in fights against mask-wearing requirements for lawmakers enacted by Democratic leaders earlier this year.

Johansen lost his wife, Cindy Johansen, to COVID-19 last summer. In a Facebook post, he said his wife was not vaccinated because of “conflicting information.”

He later attended a demonstration at the State House protesting mandatory vaccinations for health care workers.

In his letter to House Speaker Fecteau, Johansen said his wife's dedication to the family farm allowed him to serve in the Legislature and that he no longer has the time to manage both duties.

He said the decision was difficult because of the ongoing fight against what he described as the expansion of state power during the pandemic.

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Journalist Steve Mistler is Maine Public’s chief politics and government correspondent. He is based at the State House.