The Washington PostDemocracy Dies in Darkness

Opinion Graham’s 15-week abortion ban gives the endgame away

Sen. Lindsey O. Graham (R-S.C.), alongside representatives from national antiabortion organizations, unveils a nationwide abortion bill on Capitol Hill on Sept. 13. (Evelyn Hockstein/Reuters)
5 min

So much for all that talk about the freedom of states to decide on their own abortion rules. Sen. Lindsey O. Graham on Tuesday unveiled legislation that would ban abortion nationwide at 15 weeks. The South Carolina Republican’s proposal puts the lie to the notion that the Supreme Court, in overruling Roe v. Wade, merely returned the contentious issue of abortion to state control.

It did that, but it also opened the door to proposals such as Graham’s — and even more extreme restrictions — to be imposed nationwide. Anyone who thinks abortion opponents will be content with a state-by-state patchwork of abortion rules isn’t taking the determination of the antiabortion movement seriously enough.

Graham’s move might be politically bone-headed, coming less than two months before a midterm election in which voters already appear angered and energized by the court’s action. But it is just the opening salvo.

The court’s conservative majority doesn’t want you to think so. In his opinion for the court in Dobbs v. Jackson Women’s Health Organization, Justice Samuel A. Alito Jr. painted a post-Dobbs picture of happy federalism, laboratories of democracy free to experiment with different approaches.

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“In some States, voters may believe that the abortion right should be even more extensive than the right that Roe … recognized,” Alito wrote. “Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ … Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”

How lovely. How misleading. That was clear from the moment the decision was released. Justice Brett M. Kavanaugh, in a concurring opinion, acknowledged that Congress could step in. “The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress,” he wrote — and then proceeded to echo the majority’s emphasis on state sovereignty.

“Today’s decision therefore does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion,” Kavanaugh insisted. Until, that is, Congress tells the states they can’t so readily allow it after all.

Graham peddled his proposal — deceptively titled the “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act” — as a reasonable middle ground. Don’t be fooled. This is rigged federalism, skewed in favor of restricting abortion access. Under Graham’s arrangement, even as the federal government draws the line at 15 weeks, states remain free to ban abortion entirely.

Of course, Democrats want their own national abortion law — theirs to write the protections once provided by Roe into law. That makes sense: The whole point of a constitutional right is that its existence shouldn’t depend on your Zip code. It's also different from Graham’s effort to have it both ways, preempting states with permissive abortion laws while empowering those with restrictive rules.

And you know who once thought the issue should be left to states? Lindsey Graham, as recently as last month. “I’ve been consistent. I think states should decide the issue of marriage and states should decide the issue of abortion,” he told CNN.

Graham’s effort to portray the measure as simply aligning U.S. practice with that of Europe is fundamentally disingenuous. “If we adopted my bill … we would be in the mainstream of the world,” Graham said at a news conference. “Forty-seven of the 50 European countries have a ban on abortion [after] 12 to 15 weeks.”

Here in the United States, a dozen states now ban almost all abortions: Ten are poised to do so once laws take effect or court challenges are complete, and another two prohibit abortion after six weeks. That is hardly the permissive landscape of Europe.

Moreover, Graham’s 15-week limit includes exceptions for rape, incest and the life of the mother, but not for maternal health or fetal abnormality — again in contrast to the practice in most of Europe. Many severe fetal abnormalities are not detected until after 15 weeks.

Graham has introduced a similar bill before. But it is telling that Graham felt empowered by the court’s action to up the ante, prohibiting abortion after 15 weeks instead of the 20 he had earlier proposed. The purported justification — that the fetus is capable of feeling pain at that stage of gestation — is even more bogus at 15 weeks than it is at 20. “The science tells us … the nerve endings of the baby are pretty well developed and the child feels pain,” Graham said.

It tells us no such thing. “The science conclusively establishes that a human fetus does not have the capacity to experience pain until after at least 24–25 weeks,” according to a statement by the American College of Obstetricians and Gynecologists.

To be clear, Graham’s bill isn’t becoming law anytime soon, with Democrats in control of the House, Senate and White House. Even if Republicans were to retake the House and Senate, they wouldn’t be able to pass such a measure without eliminating the filibuster; in any event, President Biden would veto such a measure.

But it is not hard to imagine a moment when Republicans have the power to proceed, and use it. Graham’s GOP colleagues, rattled by midterm polling, scurried to distance themselves from Graham’s proposal and talk up states’ rights. Forgive me if I don’t feel confident that’s going to last.