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

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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.

Republican lawmakers in Florida now have even taken this cynical ploy one step further;  blaming the (conservative) United States Supreme Court in advance in the text of the legislation itself. No kidding. Why wait until after the court rules against them to decry judicial activism. In Iowa, meanwhile, pending legislation would preclude the state supreme court from reviewing a new state law restricting abortion. Those are just two of the current examples in a dizzying display of anti-abortion legislation pushed along by Republican state politicians over just the past few weeks alone. No abortions from the point of conception forward? Check. No abortions from the point of the first heartbeat? Check. "Personhood" statutes? Check. The list goes on and on -- all in fervent and futile response to a public "demand" the polls keep telling us is negligible at best.

Giving most of the people the opposite of what they want, or what they expressly do not want, doesn't seem like good politics to me, but it evidently works for these legislators. The only jobs the proposed anti-abortion statutes will generate are for conservative lawyers and paralegals, who will earn a fortune helping overwhelmed state attorneys general defend the legislation in court. The only economic stimulus from the measures comes from the checking accounts of abortion rights advocates, or the American Civil Liberties Union, which have to bankroll the intense litigation that will strike down the unconstitutional statutes. The only budget deficits that will be eased will be the budgets of conservative political campaigns and lobbying groups who will soon have a new round of negative judicial rulings to decry. And of course all this litigation will put further strains on eroding federal court resources. 

I suspect that a great many moderate, independent voters this past election cycle voted for Republican legislative candidates all across the country because of the poor economy, staggering unemployment, queasiness over home prices, and a lack of confidence in the policies and priorities of President Barack Obama and Congressional Democrats. At least that is what the numbers say. What we can never know is how the election might have been different, if it were to be different, if Republican candidates instead said to voters during the long campaign: "We know you care about jobs and the economy and the budget deficit but before we fix any of that we are going to trumpet contentious social legislation that has no chance of passing constitutional muster but which will satisfy our base."

The point here isn't that the battle over abortion isn't a fight worth having. Or that activists on both sides of the eternal debate don't have deeply-held beliefs that deserve political expression. The point is that the Republican politicians who are now pushing the issue so aggressively in state houses all across the country (and on Capitol Hill as well) neither asked for nor received a public mandate to do so last November -- and certainly don't have one today. I hope that point is raised, aloud, by those moderates and independent voters the next time these particular politicians come around asking for their vote. 

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

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