With the morning we have a bit more clarity on the national abortion ban Lindsey Graham announced last night and says he will be introducing today in the Senate. It appears to be a national ban on abortions past 15 weeks, with as yet unspecified exceptions. It’s still possible that the number will be 20 weeks. We’ll have to see that detail. This NBC News piece explains the strategy, which is more or less what we thought: an updated version of the GOP playbook over the last couple decades which is to move the debate from absolute bans, where their position is overwhelmingly unpopular, to “late term” abortions where a broad swathe of the public gets more squeamish and uncertain.
There are several reasons why I think this won’t work for them politically, which I’ll discuss below. It also highlights things that now become even more important for Democrats to do in response, both in political and substantive terms.
First, while more than 90% of abortions take place in the first 13 weeks of pregnancy, abortions after 15 aren’t what have normally been considered “late term” abortion, even in the contentious and tendentious language of abortion restrictions. In the most cynical political terms this doesn’t really center the debate on “late term” or “partial birth” abortions in the way Republicans would like. It also underscores the campaign importance for Democrats of focusing on restoring Roe’s protections, which is what the Democrats’ legislation (the Women’s Health Protection Act of 2022) does and how it’s framed.
It may seem unseemly to talk about “brands.” But the Roe brand, especially after the last few months, has incredible power. It means restoring what the Court took away. It also keeps the debate away from notional third trimester abortions that virtually never happen except in medical emergency or in cases of profound malformation or unviability. Republicans want to use misleading or dishonest scare claims as a stalking horse to restrict and finally ban abortions altogether. Saying you want to bring back Roe’s protections is simple, straightforward and powerful. It is both the most honest answer (because Roe actually allowed for significant restrictions) and the best in political terms. To every scare story and misleading claim the answer is Roe allowed restrictions and I support bringing back Roe. The Democratic position is the powerful and popular one — nitpicking and distraction is the GOP’s best angle.
Second, Republicans want to portray this as a reasonable national compromise, setting a national standard as I’ve seen even some journalists put it. But that’s not what it is. It doesn’t set a national 15 or 20 week standard. All the total restrictions which are now common in red and some purple states stay in place. It simply takes the Mississippi law which brought us the Dobbs decision and imposes it on every blue state. So what Mississippi passed and which was treated as extreme a year ago will become the law in California, New York, Illinois, Washington state and everywhere else. In practice it’s a blue state abortion ban. Abortion’s already banned in the great majority of red states or soon will be.
Republicans leave the decision to the states. Unless a state protects abortion rights. In which case Republicans ban it for them.
It is critical at every stage — though I suspect most won’t need it pointed out — that this is a national ban. Even if it’s 15 weeks versus from the moment of conception, it is a national ban. So if you’re relying on your blue state politics making this someone else’s problem you’re out of luck. It’s coming for you. And it certainly won’t stop with a 15 week ban.
Third, this move by Republicans underscores a central reality: there will be national abortion legislation. It’s just a matter of who writes it. Will it be Republicans starting with a 15 week ban and tightening restrictions going forward or will it be Democrats restoring the Roe protections which were the status quo ante? Needless to say, this makes it all the more critical that Democrats make clear that with the House and two additional Senate seats they will pass that law in January 2023. Not just pass it. Pass it in January 2023, the first week Congress reconvenes if they hold the House and add two Senate seats.
Republicans are helping Democrats make clear that abortion is on the ballot, just as much as it was in Kansas and will be in Michigan. Every bit that becomes more salient and clear is good for abortion rights and good for Democratic fortunes. Democrats need to organize around that pledge immediately. And that means senators being forced to take the pledge a mix of misguided collegiality and political myopia has so far prevented them taking.