Last week, a judge in Oklahoma permanently blocked the enforcement of a law that banned medicinal abortions (RU-486, or "the abortion pill") on the grounds that the law places undue burden on women seeking medical care. Arizona Governor Jan Brewer signed a nearly identical bill into law earlier this year. The juxtaposition of these two events spotlights a confusing phenomenon: why do fiscal conservatives keep passing and enacting bills that will inevitably be challenged and defeated in the court system? Unconstitutional laws discarded, only to be reanimated in their identical form, only to be thrown out again, only to be reconstituted. It's like Two Girls, One Cup, but with legislation.
Oklahoma's now-dead law was passed overwhelmingly by the state's Republican legislature and signed by the state's Republican governor last year. The legislation would have required that doctors only prescribe RU-486 in a manner consistent with the Food and Drug Administration's Final Printed Labeling, which was written more than a decade ago. According to Judge Donald Worthington's ruling, as with many drugs, the majority of prescriptions for RU-486 are now written in a manner inconsistent with the original labeling. Worthington concluded that, in accordance with the Supreme Court's Planned Parenthood v. Casey ruling, the law interfered with "the right to bodily integrity as a fundamental right."
Oklahoma's not the only state that's spent money defending abortion laws that were eventually defeated. So far this year, Kansas has spent nearly $628,000 defending anti-abortion laws the state government passed in the last year. Utah's stockpiling funds in the event that they have to defend a law before the Supreme Court, a process that costs at least $1 million. South Dakota's been forced to pay over $620,000 to Planned Parenthood in order to cover the family planning organization's legal fees after the state lost its case, and its 72-hour waiting period law is expected to rack up millions in legal fees. Texas is currently paying out the nose to defend its law barring Planned Parenthood from receiving funding from its Women's Health Program. And Utah just enacted its own 72-hour waiting period. And Mississippi Representative Bubba Carpenter, he of the "But, hey" coat hanger abortions, has said himself that he predicts that the law designed to hobble the last remaining abortion clinic in the state's borders will be met with legal challenge that's eventually lost — basically, he believes that the state will throw a bunch of money at the law, and that it will never see the light of day. Fiscal conservatism!
Of course, a lot of this is political theater — voters, unfortunately, don't seem to have the attention span to see laws through the peristalsis of the three branches of government; a legislator can still brag about his pro-life record in Congress even if none of the laws he voted for passed judicial muster. And showing anything less than fervent support for one side or the other of the abortion rights debate risks alienating the most motivated elements of either party's voting base.
When Republicans swept to power in 2010, they did so on the promise that they'd balance budgets, cut down on excessive spending, and promote fiscal health. It doesn't seem that paying hundreds of thousands of dollars in legal fees defending unconstitutional laws in the name of flexing one's pro-life muscles is consistent with that ethic.
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