All three bans were intentionally written to fail, to fall apart under judicial scrutiny as they made their way through the courts. Why? Because Republicans have no intention of outlawing partial-birth abortion. It's the single best weapon in their arsenal for bringing conservative Christians to the polls in large numbers in federal elections. If it were ever completely outlawed, the issue would disappear. That would be a disaster for Republicans, and they know it.
Since I first talked to him in 2003, Emory University legal historian David Garrow, author of Liberty and Sexuality, has been telling everyone who will listen about the language in these bills. Back then, Congress was debating the partial-birth abortion bill it eventually passed, and Garrow predicted that the Republicans would do what they did the last two times they put up partial-birth legislation -- write the bill so it's nearly identical to flawed partial-birth abortion laws that have been struck down by the Supreme Court.
That's exactly what they did. Much of the wording of the 2003 ban was lifted nearly verbatim from a Nebraska law shot down by the Supreme Court. The only significant difference between the two was the nine pages of verbiage Congressional Republicans tacked on about the evils of abortion that read like a campaign memo but served no legal purpose.
What the bill's Republican authors didn't add in is even more telling. If they were serious about banning partial-birth abortion, they could have easily addressed the two main issues the Supreme Court had with the Nebraska law.
The 2000 law, the justices complained, didn't include a clearly worded exception if a pregnancy threatened a woman's life. It was also so vaguely written, the court said, that it was hard to tell which abortions the law banned.
The Christian Science Monitor recently looked into Garrow's claims and churned up an interesting quote from an aide to a Republican senator who supported the bill.
"They know they still can't pass the constitutional hurdle, but certainly the administration and the Republicans have to show some movement on social issues," the aide told the Monitor.
It's the same thing a source at the pro-choice NARAL told me last year. The organization hadn't exerted much effort lobbying Democrats to vote against the abortion ban because most folks on Capitol Hill knew the bill would never pass constitutional muster. NARAL would rather save its hardcore lobbying efforts for real threats to abortion rights, she said.
For the Republicans, there's no issue like partial-birth abortion -- that is, as long as the bills they pass banning it don't actually become law. For the GOP to win federal elections, the Christian right, which isn't always dependable, has to show up to vote in large numbers. While most people associate President George W. Bush with the religious right, the fact is that evangelical Christians have until recently been wary of both Bushes.
Christian evangelicals, who largely vote Republican, ducked the polls in 1992, contributing to the loss of Bush I, a former abortion rights supporter whom they never quite trusted. In 2000, as the Christian Coalition's grassroots fell apart, only 56 percent of the Christian right turned out, leaving Bush II in a photo finish race.
But there's another problem. Republicans also must get at least 40 percent of the female vote -- some say 45 -- to win. Right now, Bush is trailing Kerry among women by five to 11 percentage points, depending on which poll you believe.
Since the majority of women oppose partial-birth abortion, as does 70 percent of the population, the issue doesn't hurt Bush -- as long as people, and in particular women, forget about it. But a string of well-publicized court victories upholding the partial-birth abortion ban before the election could be a disaster for Bush and the Republicans in that it would move abortion front and center and fuel fears among moderate women that abortion rights were at stake.
At the same time, if the GOP ever succeeded in banning the procedure, they'd face a real quandary with Christians. Folks vote when there's tension. That's why the slogan "Vote for the GOP, the Party that Banned Partial-Birth Abortion Five Years Ago" just doesn't cut it. Passing the 2003 abortion ban excited Christians. But it was the court striking it down that created the tension needed to bring them to the polls.
The whole charade will continue to work for the GOP until Christians figure out the truth. And that is that the GOP cannot ban abortion in general -- or appoint Supreme Court justices that ban abortion -- and survive in the next federal election since 60 percent of the nation opposes overturning Roe v. Wade.
It would annihilate the party for years afterward, and GOP leaders know it. And that's why the abortion path is one the GOP treads lightly on, when it dares to tread there at all.
Contact Tara Servatius at firstname.lastname@example.org