This month, Ohio governor John Kasich signed a ban on abortions after 20 weeks. This isn’t the first 20-week ban to be signed into law, and it almost certainly won’t be the last. It’s happened enough that we have a pretty good idea of exactly what will happen next, and a cynical theory about why, despite their dubious value in actually reducing the number of pregnancy terminations, lawmakers in red states just won’t quit passing unconstitutional abortion restrictions.
Eighteen states have enacted laws banning abortion at 20 weeks’ gestation. Of those, 15 have gone into effect and the three that have been legally challenged—Arizona, Idaho, and Georgia—have been struck down by courts. It doesn’t take a constitutional scholar to understand why: Roe v. Wade dictates that American women have a right to elective abortion to the point of fetal viability, which the court has decided happens at around 24.5 weeks. Twenty weeks is less than 24.5 weeks. Ergo, unconstitutional, at least with existing precedent.
The best-case scenario for pro-life politicians in a state like Ohio is that advocacy organizations with limited resources won’t decide to take them to court over their law, that it will go into effect quietly. If Ohio does get taken to court, taxpayers will be on the hook for the state’s legal bills. If they lose, Ohio’s taxpayers might be on the hook for the legal bills of the organization that challenged them, which could reach into the millions if the fight goes on for long enough.
When the Supreme Court declined to overturn a circuit court’s ruling on Arizona’s 20-week ban back in 2014, the state was ordered to pay the legal fees of the plaintiffs in the case, which amounted to $388,000. That’s in addition to the costs associated with the state’s own side of the fight.
In Texas, the price tag was even steeper. In 2013, the state passed a law that subjected abortion providers to standards that were designed to shut down clinics in the state. Pro-choice groups challenged the law twice, and in the process of defending it, Texas spent about $1 million on its own legal effort. The case worked its way to the Supreme Court this year, and the state of Texas lost. The plaintiffs requested the Lone Star State foot their legal bills as well, to the tune of $4.5 million. That’s the equivalent of about 30 times the $150,000 per year salary Governor Greg Abbott is paid. The state of Texas spent enough losing a Supreme Court case to clone Governor Greg Abbott at least twice.
Passing and defending abortion restrictions that are clearly unconstitutional is something states do all the time. Every time it happens, it hits the news cycle like a belly flop, eliciting waves of panic and outrage from pro-choice advocates and cheers from the opposing side. Then, in the ensuing months or years, it either quietly goes into effect or quietly wanders off into the wilderness of the court system to quietly die like an elderly housecat. No matter what a law’s fate, identical versions of it will pop up across other red states in ensuing months and years. Each time, the taxpayers of their respective state will pay up if the law is taken to court.
These laws erupt like rashes because abortion foes operate from something resembling a literal playbook. Different advocacy organizations—Americans United For Life (AUL) or the National Right to Life Committee, for example—release “model legislation” annually (just as advocacy organizations for, say, gun control do). It’s no coincidence that in recent years, red states passed laws targeting abortion providers with cumbersome regulations (TRAP laws, for short), or that in another overlapping set of recent years, “heartbeat bills” that banned abortion after the detection of a fetal heartbeat swept through various statehouses.
The long game behind unconstitutional restrictions like Ohio’s is the same as the long game behind bashing one’s head against the same spot in a wall repeatedly and over several years: Maybe, eventually, there will be a breakthrough. Both 20-week bans and heartbeat bans directly challenge components of Roe v. Wade, and if one of them were to be heard before the Supreme Court and win, Roe would be substantially weakened. But the court doesn’t often hear abortion cases; prior to this year, they had last heard an abortion case in 2007.
The short game in passing pro-life laws is the false belief that restricting abortion reduces the number of abortions women have. Reality doesn’t line up with that assumption. The number of abortions in the U.S. has been dropping fairly consistently since it peaked in the mid-1980s. But if abortion restrictions were actually having an impact on women choosing to carry pregnancies to term, the birth rate should have risen correspondingly rather instead of dipping between the 1980s and today (in 2016, the U.S. fertility rate hit an all-time low). It’s reasonable to assume that a simultaneous drop in both birth rate and fertility rate means that fewer women are getting pregnant in the first place, not that women who don’t want to be pregnant are choosing life. They’re clearly choosing the pill.
Proponents of 20-week bans like Ohio’s claim that it’s their devotion to a culture of life that drives their quixotic crusade. But the number of abortions that become illegal when a 20-week ban is in place is so small it hardly seems like a worthy place to devote so much effort. Only 1.3 percent of all abortions performed in the U.S. occur after 20 weeks, and many of those are performed due to fetal abnormality. In states where abortion is banned after 20 weeks, women seeking banned medical care travel hundreds or thousands of miles to obtain it. A woman’s need for an abortion doesn’t disappear because the clinic is far away.
But if abortion restrictions can cost a state millions in legal fees if challenged and don’t really do much to protect the unborn if left unchallenged, then what’s the point in even passing them over and over again? Why do pro-life lawmakers risk wasting all that money on a fruitless crusade? Why do they keep harping on a tactic that doesn’t statistically reduce the number of abortions but does harm individual women?
One might theorize, cynically, that lawmakers love abortion restrictions in part because they are red voter red meat. While restricting abortion is unsuccessful at reducing the number of abortions, it’s successful at something else: getting pro-life constituents to donate and vote. And with taxpayers footing the bill if things go sideways, why wouldn’t lawmakers keep trying it?