Sen. Lindsey Graham (R-SC) plans to unveil a new national abortion ban Tuesday afternoon — the so-called “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act.”
It’s a mouthful, brimming with language wrenched from the anti-abortion movement. Fittingly, Graham will be flanked by “pro-life leaders” while he announces it, according to his office. It is a 15-week gestational ban.
“Of course, this is not actually a ‘late-term’ abortion ban, so that term is a misnomer,’” Jessie Hill, associate dean and professor at Case Western Reserve University School of Law, told TPM. “Pregnancy lasts about 40 weeks; 15 weeks is a point early in the second trimester.”
“He’s reinventing the English language with this idea,” David Cohen, professor at Drexel University’s Thomas R. Kline law school, added.
While the bill is a helpful indicator in showing how Republicans are positioning themselves on the issue, it has no chance of becoming law through the Democratic-majority Congress.
The bill includes exceptions for “situations involving rape, incest, or risks to the life and physical health of the mother,” Graham’s office said. It also “leaves in place state laws that are more protective of unborn life” — indicating that it would not supersede more draconian bans in red states, but would hypothetically impose new restrictions in blue ones.
In the medical world, “late-term” is used to describe the very end of a pregnancy; births can stretch from early term at around 37 weeks to late around 41. The anti-abortion world has successfully hijacked the phrase to apply to much earlier abortions, implying that the procedure would be done on a virtually fully developed fetus. The gambit goes hand-in-hand with the long anti-abortion tradition of using imagery of very advanced fetuses on its signage and promotional material, even while the vast majority of abortions happen in the first trimester.
The notion of “fetal pain” is another popular one in anti-abortion circles, and the legislation for which they lobby. The medical consensus is that fetuses don’t develop the necessary structures to feel pain until the third trimester — well past Graham’s 15 weeks.
While Graham has previously introduced 20-week federal bans, the 15-week legislation would scooch up the line. He may be deriving the number from the Dobbs case, where the Supreme Court let Mississippi’s 15-week gestational ban stand. He said that he “adjusted accordingly” after the Supreme Court decision.
“I think this is partly an attempt to paint the Democrats as extreme on abortion by suggesting that they are in favor of ‘late-term’ abortion if they oppose the law, and perhaps also a calculation that the public will be less outraged by a ban on abortion at 15 weeks, which certainly is more protective of abortion access than the total abortion bans and six-week abortion bans in effect in some states,” Hill said.
The timing of the introduction is striking: just a couple months before the midterms, in an environment where Republicans are becoming increasingly nervous about the electoral backlash, particularly from women, after the Supreme Court overturned 50 years of a constitutional right to abortion.
“The Republican party is really scared of the midterm elections because of what happened in Kansas and Alaska,” Cohen said.
In Kansas, voters handily defeated a ballot initiative that would have amended the state constitution to nix abortion protections. The House race in Alaska was one of a handful of high-profile special elections that Democrats have won in recent months, early data points indicating energy from the base.
Senate Majority Leader Chuck Schumer (D-NY) opened his Tuesday floor remarks with comments on the coming legislation.
“Republicans are twisting themselves into pretzels asking for nationwide abortion bans when they said they would leave it up to the states,” he said. “Even the Senior Senator from South Carolina said a few months ago that ‘if the Supreme Court overturns Roe v. Wade’ it would mean that ‘every state will decide if abortion is legal and on what terms.’ Yet here his is introducing a bill to restrict abortions nationally.”
The abortion ban has no viable path to becoming law. With Schumer controlling the Senate’s calendar and votes, the only way he’d let the bill reach the floor is if he thought it would be politically advantageous.
“It’s never gonna pass, at least not while Biden is President and you still have the filibuster in the Senate, even if the House is taken over by Republicans,” Cohen said. “It’s all political.”