The stunning leak of a draft Supreme Court opinion indicating that the federal constitutional right to abortion may be on the cusp of evaporating has brought new and intense scrutiny to two prominent Republican supporters of abortion rights, Sens. Susan M. Collins, Maine, and Lisa Murkowski, Alaska, who provided key Senate support to justices who now appear poised to overturn Roe v. Wade.
Both women voted for Supreme Court justices nominated by former president Donald Trump, explaining that they were convinced through public and private statements that those nominees would respect existing court precedent and leave Roe in place. On Tuesday, both suggested that if in fact the court moves to overturn the decision in sweeping terms — as the leaked draft opinion signed by Justice Samuel Alito would indicate — it would represent a breach of those prior assurances.
Collins voted to confirm Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. Murkowski voted to confirm Gorsuch and Amy Coney Barrett in 2020. Politico, which first published Alito's draft opinion, reported that all three Trump-nominated justices initially voted with Alito to wholly overturn Roe. Chief Justice John Roberts said in a statement Tuesday that the draft is authentic but that the court's decision is not final.
"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 statement. "Obviously, we won't know each Justice's decision and reasoning until the Supreme Court officially announces its opinion in this case."
Murkowski, who voted for Gorsuch and Barrett but not for Kavanaugh, would not comment on particular conversations she has had with the nominees in comments to reporters on Tuesday. But she expressed dismay at both the leak and the potential that Roe's days appear to be numbered.
"We don't know the direction that this decision may ultimately take," she said. "But if it goes in the direction that this leaked copy has indicated, I will just tell you that it rocks my confidence in the court right now."
The draft opinion, however, serves as a bitter vindication of sorts for Democrats who warned that the confirmations of the Trump-nominated justices would throw abortion rights into question nationally. The issue was a particular focus of Collins's 2020 reelection bid in Maine, where Democratic candidate Sara Gideon and her allies sought to motivate voters in a state that has favored every Democratic presidential candidate since 1992.
Collins ultimately won handily, beating Gideon by nine percentage points, just weeks after voting against Barrett on procedural grounds.
Marie Follayttar, leader of a grass-roots group that worked to oppose Trump's court nominees and unseat Collins in 2020, said in an interview that Collins was warned by her group, which assembled a letter from more than 200 Maine lawyers who asserted that Kavanaugh was ideologically disposed to overturn Roe.
"The challenge is that, when it's the loss of our rights . . . there's no joy, there no jubilation, there's zero satisfaction in being correct," Follayttar said. "What we would like is the respect of being listened to. . . . No one wanted to be right."
Collins's vote secured Kavanaugh's confirmation in 2018 amid a firestorm of controversy that was largely focused on the allegations of a high school sexual assault leveled by Christine Blasey Ford that Kavanaugh denied. In a lengthy speech laying out her decision to confirm Kavanaugh, Collins explained her conclusion that the assault allegation ought to be set aside due to the competing claims and lack of firm evidence, and she also set forth her belief that he would not vote to overturn Roe or the other landmark case on abortion, Planned Parenthood v. Casey.
Kavanaugh, she said, "explained that precedent provides stability, predictability, reliance and fairness" and that "a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked."
Collins offered a similar rationale in 2017 when voting to confirm Gorsuch: "I asked him if it would be sufficient to overturn a long-established precedent if five current justices believed that a previous decision was wrongly decided," she said in a floor speech before voting to confirm him "He responded: 'emphatically no.' And that, to me, is the right approach. He said a good judge always starts with precedent and presumes that the precedent is correct."
Murkowski made similar statements about all three Trump nominees, citing their public and private statements about respecting precedent. While she ultimately opposed Kavanaugh, citing a lack of judicial temperament due to his heated testimony surrounding the sexual assault claims, she also publicly said that she did not believe he would overturn Roe based on "extended conversations with the judge."
Asked Tuesday if she believed Kavanaugh lied to her, Murkowski said, "I'm not going to comment on that." Collins, meanwhile, declined to elaborate on what any of the judges had represented to her behind closed doors: "My statement speaks for itself."
Democrats who fought against Trump's Supreme Court nominees and warned of the potential threat to abortion rights largely declined directly to criticize Collins or Murkowski, who are often allies of Democrats on other legislative matters. But they said that all of the indications that the three Trump judges could ultimately overturn Roe were plain for all to see.
"They don't tell you in private or public meetings how they would decide on a particular case, but the president at that point said he had had a litmus test," said Sen. Tammy Baldwin, D-Wis., referring to Trump's various public statements that included saying in a 2016 presidential debate that Roe would be "automatically" overturned were he to appoint multiple justices.
Senate Judiciary Committee Chairman Richard Durbin, D-Ill., also declined to comment specifically on Collins or Murkowski. "But if you look at the statements made by these men as judicial nominees," he said, "they really misled us into believing that they were going to sustain this precedent."
While Collins does not face reelection until 2026, Murkowski is seeking it this year. But her political situation is markedly different: She represents a GOP-tilting state where she very well might be the most appealing candidate on the November ballot for moderate and left-leaning voters after the most prominent Democrat dropped out of the race last month. Her most serious challenge is on the right, from Trump-backed GOP candidate Kelly Tshibaka.
Both Collins and Murkowski voted last month to confirm President Biden's first and only Supreme Court nominee, Ketanji Brown Jackson. They both, however, voted in February against a Democratic bill, the Women's Health Protection Act, aimed at turning Roe and Casey into law and putting it beyond the reach of the courts.
They have offered a competing bill, the Reproductive Choice Act, that is much more narrowly drawn than the Democratic bill and does not have any other co-sponsors. The bill would preserve Casey's "undue burden" standard for abortions performed before fetal viability while barring "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking to terminate a pregnancy."
The bill is viewed skeptically by Democrats, who believe that it has loopholes that would permit state laws such as Mississippi's law barring abortions after 15 weeks of pregnancy — the law that is now under consideration at the Supreme Court.
"What we are seeing now is an assault on women's health care by state legislatures who will exploit any loophole, any gap to restrain or completely eliminate women's reproductive rights, and that's what the Women's Health Protection Act stops," said Sen. Richard Blumenthal, D-Conn.
Senate Democrats may be especially disinclined to try to woo Collins or Murkowski considering that, even with their support, any bill preserving abortion rights nationally would still remain well short of the 60 votes needed to vault a Senate filibuster. There is no indication that any minds have changed since Democrats attempted in January to lift the filibuster to pass voting rights legislation. The two Democrats who opposed that move then, Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., made statements Tuesday supporting the current Senate rules, as did Collins.
"Senator Collins' position on the filibuster is unchanged," said Annie Clark, her spokeswoman.
The Washington Post's Paul Kane and Marianna Sotomayor contributed to this report.