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Spokane, Washington  Est. May 19, 1883

1990s Idaho legislation a lesson in how pushing to ban abortion may propel its preservation

By Marc C. Johnson and Robert P. Saldi Special to the Washington Post

The leaked draft of a Supreme Court opinion on abortion published by Politico on Monday indicates that the court is poised to overturn Planned Parenthood v. Casey, Roe v. Wade and their progeny – ending constitutional protections for the right to have an abortion. Unless one of the five justices in the majority changes his or her mind before the Court issues a final opinion, our decades-long battle over the country’s most contentious social issue will shift from confirmation hearings in front of the Senate Judiciary Committee to state capitols.

While this offers antiabortion forces their best opportunity in five decades to limit access to the procedure, it could also usher in a dog-that-caught-the-car dynamic for Republicans. For decades, abortion has benefited the GOP – in part because of the deep sense of grievance among conservative Americans on the issue.

Many on the right smolder over what they see as the deeply unfair and anti-democratic manner in which abortion became legalized. They argue that abortion rights forces knew they couldn’t win through the policy process at the state level, so they ran to the Supreme Court instead. Only then – at the hands of unelected and unaccountable judges clinging to a made-up “right to privacy” – did legal abortion take root, they say.

Republicans have effectively harnessed the grievance that comes with a feeling of being cheated, leaning on it to mobilize, organize and consolidate the conservative movement that has fueled the GOP ever since.

But if the court overturns its line of decisions protecting abortion rights in Dobbs v. Jackson Women’s Health Organization, it will leave a very different set of Americans aggrieved. Supporters of abortion rights will fume over something long taken for granted being suddenly stripped away. And a fight in deeply conservative Idaho three decades ago indicates that their anger could scramble the politics of abortion.

In 1990, the Idaho Legislature took up a bill that would have created the country’s most restrictive abortion regime. Written with Justice Sandra Day O’Connor – thought to be the Supreme Court’s decisive vote on abortion at the time – in mind, the bill permitted abortion only if a rape victim reported the crime to police within seven days. An incest exemption applied only if the victim was under 18.

The bill proved bitter and divisive. While the GOP-dominated legislature debated, competing sets of demonstrators rallied outside. Nightly candlelight vigils peppered clumps of wax on the Idaho Capitol steps. Reporters from dozens of national and international news organizations set up shop outside Democratic Gov. Cecil D. Andrus’ office.

While Republicans assuredly wanted to outlaw abortion, they also saw a potential opportunity in pushing the bill in 1990. The election year timing of this high-profile abortion fight couldn’t have been worse for the Democratic governor. Andrus’s base deeply opposed the legislation, but to win in Idaho he needed a much broader coalition. Moreover, the governor consistently described himself as “pro-life,” approving of abortion only in cases of rape, incest or where the mother’s life was threatened. And conventional political wisdom held that conservative Idaho would punish a politician who vetoed antiabortion legislation – leaving Andrus in a vice. The governor certainly agreed.

Sensing a win-win situation, antiabortion forces engaged in what the governor considered “crude pressure tactics, and jingoism.” For their part, supporters of abortion rights threatened Idaho, which boasts of its “Famous Potatoes” on license plates, with a spud boycott. Andrus even had to answer allegations that he’d dodged a call from Mother Teresa. Syndicated columnist Robert Novak wrote that the internationally famous Catholic nun had called to lobby the governor. The Kolkata pressure campaign was a hoax, yet it encapsulated the circuslike environment.

When the Legislature passed the bill, it was not clear what Andrus would do.

But just minutes after the legislature adjourned for the year, the governor issued a veto. While he worried about the political ramifications, he sensed that by focusing on the uncomfortable specifics of what the legislation actually meant for Idahoans, as opposed to the rhetorical shorthand that reduced the debate to “pro-choice” or “pro-life,” he had a chance to explain himself.

Crucially, he framed the issue, in part, as an outsider-sponsored assault on Idaho sovereignty, a campaign by professional agitators bent on making the state an expensive and contentious proving ground for how far any legislature could push back against Roe v. Wade. “Somebody thought Idaho looks like a patsy,” Andrus said in his veto announcement. “I submit to you: Idaho is not a patsy.”

Andrus also focused public attention on how extreme the legislation was.

As the drama unfolded in the Idaho Capitol, the governor pleaded amid all the loud voices for Idahoans to “pause, reflect, and understand what was at stake.” While that request did little to deflate the passion of activists, by the time Andrus rejected the proposal most Idaho voters had begun grappling with the bill’s real implications. For many, abortion had ceased to be an abstract issue. They were forced to consider whether they really wanted the new reality that was on the table.

The governor explained that where grace and care were required, the legislation was so narrowly drawn, so punitive in its application as to be “without compassion, further harming an Idaho woman who may find herself in the horrible, unthinkable position of confronting a pregnancy that resulted from rape or incest.”

Immediately after the veto, and to his surprise, Andrus’s own internal polling showed that by substantial margins voters supported his action. Idahoans agreed with his plea for common sense and compassion. The polling even indicated that most Mormon women supported Andrus’s framing of the issue. (More than a quarter of Idaho’s population is affiliated with the Church of Jesus Christ of Latter-day Saints.)

Some Republican lawmakers seemed to recognize that they’d overplayed their hand. As one GOP leader said of the governor, “I’m not sure the downside risk is so great to him.” Election results seven months later confirmed that the abortion trap many conservatives thought they’d set for the governor not only didn’t work, it may have even backfired.

With the abortion bill and its fallout looming over the election, Andrus won a fourth term with nearly 70% of the vote against a challenger who attempted to make abortion a central issue. Additionally, Democrats won three of the top five statewide offices, carried both of the state’s congressional districts for the first time since the 1960s and picked up enough seats in the state senate to share control with the GOP. Among the defeated Republicans was a prominent state senator frequently described as “an architect” of the abortion bill.

That election marked the modern political high-water mark for Idaho Democrats. The outcome confirmed that rather than punish politicians who rejected sweeping restrictions on abortion, voters just might reward them, even in a deeply conservative state. For one election cycle, at least, the passion around this most divisive of American social issues shifted from those seeking to limit abortion rights to those faced with losing those rights.

Idaho’s experience in 1990 is a good proxy for what might happen if the Supreme Court follows through and does away with the right to have an abortion. It will unleash fierce fights in statehouses across America and make the potential consequences of a world without legal abortion very real.

For Democrats, how they frame the issue will be of paramount importance. While polling has consistently shown that a solid majority of Americans support legal abortion, it is also clear that the language used to describe what’s at stake is of great importance. As Andrus knew, the passion of advocates on both sides tends to obscure the deeply ambivalent attitudes many Americans have about abortion. How they understand proposed legislation – and a world without constitutional protection for the right to an abortion – will matter.

But the lesson of Idaho is that if the issue is framed correctly, the sense of grievance surrounding abortion that has long propelled the right will shift, energizing voters looking to preserve access to abortion and catalyzing their support.

Marc C. Johnson is a columnist, historian and author of “Tuesday Night Massacre: Four Senate Elections and the Radicalization of the Republican Party,” just published by the University of Oklahoma Press. Robert Saldin is a political scientist at the University of Montana and a senior fellow at the Niskanen Center.