The South Dakota legislature today passed its anti-abortion law, and it is likely that SD Governor Rounds will sign the bill. The apparent purpose of the law is to give the Supreme Court an opportunity to overturn Roe v. Wade. Since Sandra Day-O'Connor, who generally supported abortion rights, has been replaced by Samual Alito, abortion opponents believe that the Court may be ready to overturn Roe.
That's the story you'll read in the newspapers. What does not fit into this picture, however, is the fact that the South Dakota legislature wrote the law in a way that minimized its chances of passing Supreme Court review. The law outlaws abortion even in cases of rape or incest, or if the health of the pregnant woman is at risk. In addition, it defines the beginning of life at the point when a human egg is fertilized. This may prohibit stem-cell research and some birth-control methods, and may restrict medical research. There is a fair chance that a majority on the Court will reject a law with such broad implications. I am not even sure whether Justice Scalia would uphold the law. After all, he once characterized himself as a "faint-hearted originalist." Forcing raped kids to give birth may not be something for the faint-hearted.
Why does the SD legislature pass a law that is likely to be overturned? One possibility is that the law is mainly an act of symbolic policy. It makes a strong statement that appeals to more extreme voters and activists, but it is not meant to have much of an impact. The problem with this argument is that it assumes that voters and activists are gullible and belief the legislature's posturing, which I find unlikely. NPR reports that abortion opponents in fact debate whether a sweeping law such as the one in South Dakota is the right strategy to overturn Roe. Activists are aware of the fact that the law may not be upheld, they do not seem to be stupid or ignorant. But maybe they are irrational -- more interested in ideological purity than effective but morally compromising strategies.
Another possibility is that activists and politicians do not want the law to be upheld. It is well known that it is easier to mobilize support against something than for something. If abortion was illegal, conservatives would lose an important evil that helps them rally support. Liberals, on the other hand, would gain an evil that they could use to gather support. Maybe conservative activists and politicians prefer the status quo, after all.
I usually dislike such conspiracy-type arguments, as they violate an important property of good social science theories: parsimony -- explanatory simplicity. If you can explain the same facts with a simple argument and a complex argument, the simple argument is to be preferred. Since it is more complex to assume that people lie because of hidden strategic motives, the first argument (that the law is symbolic) is to be preferred. On the other hand, the hidden-motive argument does not require the assumption that activists and politicians are stupid or irrational...
A third possibility is suggested by Vikram Amar, who is quoted by Bloomberg News as suggesting that the South Dakota legislature may be expecting future changes on the Supreme Court that will lead to a favorable outcome. Amar points to the fact that cases usually take several years to reach the Supreme Court. It is likely that in the next couple of years at least one vacancy will have to be filled on the Court, opening the possibility for more conservatives on the Court. But, from the perspective of anti-abortion activists, those should not be faint-hearted.
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