Lindsey Graham’s Abortion Ban, Which Would Override State Laws, Shows Contempt for Federalism
The federal abortion ban that Sen. Lindsey Graham (R–S.C.) proposed yesterday is moderate compared to state laws that have been enacted or taken effect since the Supreme Court overturned Roe v. Wade in June. But it is based on an audacious claim of congressional authority to regulate abortion that obliterates the constitutional distinction between state and federal powers. If successful, Graham’s reasoning would renationalize a controversy that Roe‘s opponents have long argued should be settled state by state.
Graham’s bill, which has provoked more dismay than enthusiasm among his Republican colleagues, would make it a federal felony, punishable by up to five years in prison, to perform an abortion at 15 weeks of gestation or later. Its very name, the Protecting Pain-Capable Unborn Children From Late-Term Abortions Act, is contentious. Graham controversially argues that “an unborn child is capable of experiencing pain at least by 15 weeks gestational age,” and he arbitrarily defines abortions at that point, early in the second trimester, as “late-term.” But in practical terms, a 15-week ban is far milder than the restrictions that many states have imposed or begun to enforce in recent months.
In 2019, according to data collected by the Centers for Disease Control and Prevention (CDC), just 8 percent of U.S. abortions were performed after 13 weeks of gestation. By contrast, bans that apply after fetal cardiac activity can be detected—which typically happens around six weeks, before many women even realize they are pregnant—cover a large majority of abortions. The CDC reports that 57 percent of U.S. abortions were performed after six weeks in 2019. A substantial share of the rest also would have been covered by “heartbeat” laws. Some state bans go even further, covering nearly all abortions at any point after conception.
Graham’s bill would permit abortion after the 15-week cutoff when a doctor deems it necessary to “save the life of a pregnant woman” or in cases involving rape or incest. While the latter two exceptions are widely supported, even by people who describe themselves as “pro-life,” many anti-abortion activists and politicians oppose them. In July, the Poynter Institute reported that 15 of 22 states with “new or forthcoming limits on abortion” did not make exceptions for rape or incest.
Notwithstanding these relatively moderate elements, Graham’s bill would establish a new precedent for national restrictions on the timing of abortion. Activists hope to build on that precedent with progressively stricter limits that would apply even in states where most legislators and voters oppose them.
That approach has generated a backlash not only from pro-choice Democrats but from pro-life Republicans. To some extent, those Republicans are worried about the political cost of broaching this issue less than two months before the midterm elections. But several also have implied that national abortion restrictions are contrary to the principles of federalism.
“I don’t think there’s an appetite for a national platform here,” Sen. Shelley Moore Capito (R–W.Va.) told Politico yesterday, when West Virginia legislators approved a bill that would ban nearly all abortions. “My state, today, is working on this. I’m not sure what [Graham is] thinking here. But I don’t think there will be a rallying around that concept.”
Senate Minority Leader Mitch McConnell (R–Ky.) li
Article from Reason.com