Collins opposes one Roe ‘codification’ while proposing another

Being a pro-choice Republican seems like a lonely patch of political ground to occupy these days. In fact, many Democrats and abortion rights activists question whether there’s really any such thing in the current GOP.

That was the situation (once again) earlier this week involving Collins.

Collins introduced a bill with her like-minded colleague, Sen. Lisa Murkowski of Alaska, to guarantee women the right to access abortion, even as they joined other Republicans in scuttling a different bill with the same general aim but further-reaching policy implications.

Abortion rights supporters are scrambling right now to “codify” the right to an abortion in federal law to prevent states from making the procedure illegal or impossible to access. Within months, the conservative majority on the U.S. Supreme Court could vote to weaken or toss out the constitutional protections guaranteed in the landmark Roe v. Wade ruling.

The more sweeping bill, the Women’s Health Protection Act, is supported by the vast majority of Democrats in Congress along with pretty much all of the major abortion rights groups. But supporters fell well short of the 60 votes needed to move it forward in the Senate last Monday.

Collins and Murkowski insist their proposal, the Reproductive Choice Act, is a more straight-forward codification. But abortion rights groups say it isn’t enough.

“It maintains the current situation in our country, which is a crisis,” said Nicole Clegg with Planned Parenthood of Northern New England.

Clegg noted that more than 100 restrictions on abortion have been passed in states during the past year, to the point where some states are down to a single abortion provider.

“Relying on a codification of Roe isn’t enough because the circumstances are such now that people don’t have the ability to exercise their rights – whether it’s through incredible hurdles and restrictions that they have to abide by or it’s an outright ban like what we’re dealing with in Texas,” Clegg said.

But according to Collins and Murkowski — who are among the only Republicans left in Congress who identify themselves as pro-choice — the Democratic bill goes way too far. For one, they say it would undercut a 30-year-old religious freedom law that protects health care professionals and institutions (including Catholic churches) that oppose abortion.

“The Democrats’ proposal would provide an exemption to this religious liberty law for the very first time and it would take away, weaken, and undermine the conscience exceptions for health care providers. And I think that is wrong,” Collins said.

The Democratic-backed bill would also nullify dozens of state laws that impose additional restrictions on abortion but are currently allowed under the other landmark abortion case, Planned Parenthood of Southeastern Pennsylvania v. Casey from 1992.

The Collins-Murkowski bill to codify Roe and Casey decisions is just three pages long compared to the 27-page Democratic bill. While Collins said some state laws would be nullified and others upheld under her bill, Clegg said it wouldn’t change the most problematic, including the Texas law now before the Supreme Court.

“It actually further waters down the constitutional right to abortion by suggesting that outright bans on abortion are subject to the ‘undue burden’ standard,” under the Casey ruling, Clegg said. For years, abortion rights groups viewed Collins as an occasional (but not always rock-solid) ally within the largely anti-abortion ranks of the GOP. That relationship was severely injured, however, following Collins’ pivotal Oct. 2018 vote to support Supreme Court Justice Brett Kavanaugh, because activists on both sides of the abortion issue regard him him as a reliable vote to overturn Roe.

Meanwhile, Collins’ filibuster vote to block consideration of the Democratic bill drew praise from the Christian Civic League of Maine, a conservative group that described the bill as “creating yet another barrier to saving the lives of the unborn.”

“Partly because of her vote, the bill died in the Senate,” the group wrote in an email to supporters. “It is incredibly important that we let our legislators know when we appreciate a vote that they’ve taken. If we don’t, they may not have the courage to do so again.”

It’s unclear whether senators will have a chance to vote again on a codification measure or if there will be any bipartisan talks. Abortion rights supporters don’t appear to have the 60 votes to break a Republican filibuster, even with Murkowski and Collins.

“Would it pass? I don’t know,” Collins told Maine Public. “It would be difficult to get 60 votes. But it certainly would have a better chance than the bill that was defeated (this week) that did not even get a majority vote.”

Higher direct payments

The state is expecting to collect an additional $411 million in revenue through the end of June 2023 and Gov. Janet Mills is proposing to give more of it to residents.

The governor’s supplemental budget plan has already proposed giving roughly 800,000 Mainers checks of $500. The new revenue projections, released this week by the Revenue Forecasting Committee, have prompted her to increase those payments to $750.

Mills’ new proposal is expected to be included in a change package to the Legislature’s budget-writing committee. The committee began taking public comment on her older proposal this week, including the direct payment initiative that Mills says is designed to provide relief to Mainers cash-strapped by inflation and higher energy prices.

Taking a rhetorical cue from Mills’ reelection opponent, former Gov. Paul LePage, Republican legislators initially balked at the direct payment idea. They argued that the surplus should be used to cut the state income tax. They haven’t said yet how the state should pay for the cut, or how much the cut should be. It’s a crucial detail given that the income tax makes up about 40% of the state’s annual revenues and because the revenue projections at issue are partially based on anticipated tax collections, including income tax collections.

The income tax cut vs. direct payment debate was barely present in this week’s public hearing. Whether that’s a signal that the GOP will eventually go along with the governor’s plan is unclear. Either way, acquiescing to the governor’s plan in the Legislature wouldn’t necessarily mean the GOP would have to abandon the income tax cut argument for this year’s election. It also might spare them from having to produce a detailed tax cut plan that Democrats could use against them. After all, the race for governor isn’t the only contest on the ballot this year. Every lawmaker seeking reelection is, too.

Lawsuit pressure

Maine is the only state in the country that exclusively uses private attorneys to provide a constitutionally required legal defense to low-income residents facing criminal charges. Other states use public defender offices, which in some cases also contract private lawyers.

While not its explicit goal, a lawsuit filed by the ACLU of Maine this week could push the state to adopt some sort of public defender system.

The ACLU, which has supported efforts to create a public defender scheme in Maine, asserts that the state’s current program has effectively created two criminal defense systems, one for the rich and one for the poor.

Previous efforts to create a public defender system or a hybrid have encountered two-pronged resistance from some defense attorneys and a reluctance by the Legislature to fund a complete or partial overhaul.

The ACLU lawsuit has already led to renewed calls for a public defenders office.

“Without a public defender office in Maine, we have a system where lower-income defendants are sometimes unable to access quality legal representation,” said Rep. Thom Harnett, D-Gardiner, co-chair of the Judiciary Committee in a statement this week. “Members of the Legislature agree that this must change, and we gave unanimous support to a proposal last year to open Maine’s first public defender office. Unfortunately, this bill is not yet law.”

A major obstacle for making last year’s bill a law is the same one that’s arguably hampered efforts to reform the current system: funding.

The lawsuit might change that, especially if the court grants the ACLU’s request for class-action status.

So far, the lawsuit has done little to reduce tensions among some of the private attorneys rostered in the current indigent defense program and criminal defense reform advocates like the ACLU. Reaction among defense attorneys this week was mixed and some saw it as an indictment of their work. That dynamic has been present throughout the intense scrutiny of the program.

“Talking about this issue remains a dicey proposition because any criticism of the ‘system’ is portrayed as criticism of the lawyers within the system,” Commission member Ron Schneider wrote to director Justin Andrus on Jan. 10. “Similarly, any criticism of any lawyers in the system is characterized as criticism of all lawyers in the system.”

Schneider later adds, “In Maine, it remains true that a poor person can be assigned one of the best Maine has to offer and also a seriously substandard lawyer, and we still do not do what we must to ensure that the poor person does not fall victim to the latter.”

Schneider’s email to Andrus is an exhibit in the ACLU lawsuit, which argues that the state has moved too slowly and jeopardized the constitutional rights of low-income defendants.

It’s worth noting that the creation of a public defender’s office or a hybrid is no guarantee of inoculation from other indigent defense lawsuits, nor will it necessarily solve the problems that often plagues other states’ systems. The ACLU, for example, has initiated litigation in several states with public defender’s offices, including Connecticut, Idaho, Michigan, Mississippi and Nevada. Also, the Brennan Center for Justice in 2019 outlined an array of issues with indigent defense programs.

Masks optional at the State House

Like much of the rest of the state (and country), the Maine Legislature is dropping its mask requirement.

Masks or other face coverings have been required in all legislative spaces (with exceptions) since the early days of the pandemic. On Thursday afternoon, legislative leaders voted unanimously to make masks optional starting on Monday.

The policy moving forward will be based on where Kennebec County falls on the U.S. CDC’s scale of transmission risk, although any changes would be approved by legislative leaders rather than enacted automatically in response to the CDC maps. Kennebec is currently a medium-risk county, meaning masks are recommended but not required.

N95 masks will still be provided to legislative staffers, if they want them.

“After a difficult few months, all the available data suggests that the COVID-19 surge in Maine has finally subsided,” House Speaker Ryan Fecteau, D-Biddeford, and Senate President Troy Jackson, D-Allagash, said in a joint statement. “Hospitalization rates across the state have declined dramatically and only two counties are experiencing high transmission rates as classified by the U.S. CDC. Now, beginning Monday, masking will no longer be required to walk through the doors of the State House. However, it remains an option for anyone who chooses. We hope that this positive trend will continue and that we won’t need to return to requiring masks in the State House but will continue to monitor the COVID-19 transmission rates in Kennebec County and the state.”

Tribal bills still being worked

One of the biggest issues of the 2022 legislative session is a proposed overhaul of the 1980 settlement agreement between the state and tribal nations in Maine. If approved by the Legislature, the proposal would ensure that members of three tribes in Maine – the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians – are entitled to most of the rights, privileges, powers and duties ascribed to the more than 500 other federally recognized Indian tribes in the U.S. The fourth tribe in Maine, the Aroostook Band of Micmacs, is not part of the bill but is engaged in separate discussions.

Lawmakers on the Judiciary Committee worked on the bill, LD 1626, into Thursday evening and planned to hold future sessions with tribal leaders and the attorney general’s office before any votes.

There is broad bipartisan support for overhauling the agreement, which deals with taxation, land use, hunting and fishing regulation, as well as criminal justice issues. But the details are many and the negotiations complex. Gambling policy issues are not part of LD 1626 but are part of other legislation.

Maine Public will continue to monitor those discussions.

Maine's Political Pulse is written by Maine Public by political correspondents Kevin Miller and Steve Mistler and produced by digital news reporter Esta Pratt-Kielley. Read past editions or listen to the Political Pulse podcast at mainepublic.org/pulse.