The venerable National Review has this comment, about the forthcoming South Dakota law banning virtually all abortions, in it's "Window on the Week" column:
"Federal courts will almost certainly strike down the law before it takes effect, and South Dakota will have to pay the fees of the abortion clinics’ attorneys. Subsidizing the ACLU and Planned Parenthood may not be the legislators’ intent, but it is the effect of their actions. There may be some value in putting the state’s opposition to abortion on record. But the legislators could have accomplished that by passing a resolution committing themselves to the goal of protecting unborn human life from unjust killing as soon as it becomes possible — and committing themselves to participating in a practical strategy, combining legislation and litigation, to make it possible. The current bill, though idealistic, is a distraction from that task."
I am very sorry the National Review has taken this tack. The legislators in South Dakota have done exactly the correct thing here, and all over the country, stouthearted legislators are eager to do the same. Now this National Review comment will be thrown up to them, and have the (surely unintended) consequence of aiding and abetting the promise-everything-but-do-nothing-meaningful phony prolifers who already have too much power in our political system.
Yes, it's true the the litigation will likely come out as NR predicts, and that means paying the pro-aborts' legal fees. But by that argument, you never do anything that isn't a sure thing when it gets litigated, and that's a ridiculous standard to set. And it is not certain how the resulting litigation will result. To the extent that pursuing litigation is worthwhile, it is necessary to make cases happen. Imagine, back in the 50s, if folks had given similar advice to the NAACP: "don't go there--all you'll do is lose this case, just like before, segregation will be ratified again!, and you'll put money in the segregationists' pockets!"
The relatively small amount of money that unsuccessful litigation would actually put into the pro-aborts' pockets is far outweighed by the tax money that flows to these folks -- and that's deliberate and voluntary, where -- according to the principle of double effect -- this transfer of funds is an unavoidable evil consequence of an otherwise good and worthwhile action.
Now, as to NR's charge that this is a "distraction" -- well, it depends on what your goal really is. If the NR's goal is more litigation, well that's foolish and they should know better. Litigation of such cases has some value, but it's not the main pursuit. Even if we could win every case we could present in every courtroom -- a highly dubious notion! -- we won't curb abortions there, but through legislation.
And it's rather stupid to argue that the way to pass legislation is not to try! But believe it or not, this is precisely what politicians, addle-brained activists, misguided lobbyists, and now the NR, advocates.
This is standard fare: you bring a controversial bill to the legislature (and everything that will make a significant difference will be controversial), and finding a politician to introduce it, sponsor it, say nice things about it, is one thing; start insisting that it come to a vote, and you will here advice remarkably similar to the NR's: not now, not expedient, wrong move, a distraction, etc.
The argument so-called insiders offer is, oh, you don't want to push for a vote till you have the votes! Ah, how do will you know you have them--till you have a vote? And how do you change the vote count -- until you (1) have a vote and (2) hold the politicians accountable for that vote at the next election?
Now, the NR said, oh, you can have the same effect by having a "resolution." Sorry, NR, but a non-binding, changes-nothing resolution ain't the same as a law that does change things. Know how I know? Because meaningless resolutions pass all the time when effective legislation on the same subject doesn't. Guess why? Because the other side gets a lot less upset about change-nothing resolutions. If you can guess why, you win the prize... Sorry the NR can't figure that out.
Year after year, an awful lot of good legislation is stymied when supposed allies say, "oh, that'll never pass" -- and it never gets a vote.
Thanks to the doughty Legislature of South Dakota, they can't say that there, anymore.