The Ol' Bait and Switch on Abortion for State GOP Majorities

Recent national polls suggest that a vast majority of Americans are concerned about jobs, the economy, the budget deficit, health care, immigration reform, and the wars in Iraq and Afghanistan, more or less in that order. The topic of abortion, in any of its forms, doesn't even register on these laundry lists of priorities. It was this way before last year's mid-term elections, too. And yet, all across the country, Republican state lawmakers, emboldened by their strong showing in last November's contest, are pressing ahead with dramatic abortion restrictions which in most cases have no support in existing legal precedent and which almost certainly will be struck down by the federal courts.

All these machinations take no fewer than two or three years to unfold, and often longer, costing everyone a great deal of time, money, and energy.

By now we all are familiar with this script. Conservative activists, in and out of government, propose grandiose anti-abortion measures. Religious fundamentalists and others who form the base of anti-abortion activism love the effort -- naturally, since it's what they paid for with their campaign contributions and PAC money. Some of these proposed abortion laws are so poorly conceived or drafted, however, that they get knocked out in committee, or in the general legislature, or by a veto at the governor's mansion. Regardless, the media dutifully report on their details. Anti-abortion advocates read these stories, which they see as signs of progress in the fight to make abortion largely illegal again. Abortion rights advocates read these stories, which they see as signs of the continuing rollback of the personal privacy rights guaranteed to them in 1973 in the Supreme Court's landmark case, Roe v. Wade.

Some of these measures become state law. Upon passage, defenders of abortion rights sue to challenge and preclude the enforcement of the measures. Again, there is a new round of media coverage which educates and nourishes the advocates on both sides of the debate. The federal courts become involved. After a series of hearings, and dramatic briefs, the judiciary politely refuse to overturn the core of Roe and its progeny and instead strike down the offending state statute. Typically, all these machinations take no fewer than two or three years to unfold, and often longer, costing everyone a great deal of time, money, and energy, all of which could have been used instead to work on the priorities that Americans consistently say troubles them much more these days than creating more restrictions on abortion rights.

But that's no matter to the politicians who sponsor these anti-abortion bills because they've come to learn that there is little or no political cost to them in defeat. There is instead a form of political martyrdom -- thanks to a political bankshot that rivals the Iran-Contra deal for its sheer gall and simplicity. At the end of the cycle, when the courts naturally reject their dubious efforts, the politicians simply pivot to their ardent supporters and say: "Look, we tried. But those arrogant and activist federal judges again thwarted the will of the American people." Frustrated and disappointed supporters of the measures thus are handed on a platter a convenient and popular target to blame -- the federal judiciary -- which of course can't or won't argue back. And the politicians who sponsored the patently unconstitutional legislation, which consumed all that precious time and energy? They simply move on toward the next windmill.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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