South Carolina senator Lindsey Graham introduced a new set of federal abortion restrictions today — the sixth time he has done so, but the first time he has proposed capping the procedure at 15 weeks rather than 20. Advocating for this medically arbitrary threshold, rather than a wholesale ban on the procedure, allows Graham and his party to present themselves “as being more mainstream” than Democrats, per Axios. The legislation is unlikely to pass the Senate, over which Democrats retain fragile control, but likely to gain traction among Republicans ahead of the midterms.
“I think we should have a law on the books that says after 15 weeks, no abortion on demand except in cases of rape, incest, to save the life of the mother, and that should be where America’s at,” Graham said at a press conference on Tuesday. “If the Democrats are in charge, I don’t know if we’ll ever have a vote on our bill.”
The “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act” would threaten doctors who perform most abortions after 15 weeks with up to five years in prison. The bill includes exceptions for pregnancies resulting from rape and/or incest, under certain conditions — rape victims would be required to obtain counseling and/or “medical treatment” ahead of an abortion, while crimes against minors would have to be reported — as well as those that threaten the patient’s life. It also includes familiar fallacies about fetal development, and lacks anything resembling a scientific basis.
To start, 15 weeks is the Trojan-horse deadline Mississippi used in Dobbs v. Jackson Women’s Health Organization, urging the Supreme Court to toss out Roe v. Wade. Roe was pegged to the viability standard, barring individual states from outlawing abortion before a fetus could survive on its own, outside the womb. Fetuses don’t reach that developmental stage until about 23 to 24 weeks at the earliest. But in June, the Supreme Court scrapped Roe’s framework, allowing individual states to set their own terms on abortion. Graham approved that decision, and recently said on CNN that abortion is an issue for states to decide rather than the federal government. Clearly that was bullshit, much like the bill’s language about “fetal pain” and “late-term abortions.”
Regarding the former, the American College of Obstetricians and Gynecologists is clear: “The science conclusively establishes that a human fetus does not have the capacity to experience pain until after at least 24–25 weeks. Every major medical organization that has examined this issue and peer-reviewed studies on the matter have consistently reached the conclusion that abortion before this point does not result in the perception of pain in a fetus.” When lawmakers say “late-term,” they usually mean 21 weeks and after. That language is a bad-faith political construct in and of itself, but the 15-week benchmark comes early in the second trimester, well before many structural fetal anomalies — some of them lethal — would become detectable. In Roe’s absence, conservative lawmakers have ripped down the guardrails that allowed physicians to protect their patients’ health when complications arise in a pregnancy.
Speaking to Fox News, Graham claimed his bill “puts us in line with the rest of the world,” which isn’t true, either. Though (as Republicans are fond of pointing out) many European countries have adopted similar gestational limits to the one Graham proposes, they largely have health-care systems that cover abortion costs and lack the deliberate access barriers that so many U.S. states impose. Crucially, our supposed peers also tend to make broad exceptions to those limits — to account for factors like medical health and financial circumstances, in addition to prenatal complications — that extend the timeline. Over here, there is no context in which 15 weeks qualifies as reasonable.
Still, it’s difficult to tell what support of Graham’s measure would mean for his colleagues. Abortion is a leading issue for Democratic voters but much less so for Republicans, at least according to recent polling. The Kansas primary last month saw red-state voters kill a ballot measure paving the way for legislators to ban the procedure, suggesting that conservative extremists may be losing touch with what their constituents want. Some are now softening their rhetoric in order to, as Graham put it to Fox, frame themselves as the “responsible alternative to the very radical position by Democratic senators” who want abortion to be legal, full stop. But the only thing they’re actually doing is recycling the same misinformation that has compromised the wellbeing of pregnant people across the country.