Republicans Forget About States’ Rights in Attempt to Ban Abortion Nationwide

“Every state will decide if abortion is legal and on what terms,” Sen. Lindsey Graham once said, and apparently didn't mean.

Not even three months after the Supreme Court struck down Roe v. Wade, South Carolina GOP Sen. Lindsey Graham introduced a bill Tuesday that would ban abortion after 15 weeks.

Graham’s plan has little chance of success this year, but it’s an indication of where the mainstream GOP is headed and the policies they’ll pursue if they’re able to wrest back control of Congress. 

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It also stands in stark contrast to the assurances from Republican leaders that once Roe was struck down, they’d let individual states decide abortion laws. 

While even more right-wing conservatives have signaled support for a national “fetal heartbeat” ban, Graham and other top Republicans cheered the Dobbs ruling as a win not only for the anti-abortion movement but also for the right of states to make their own laws.

In May, when the draft of Justice Samuel Alito’s Dobbs v. Jackson Women’s Health Organization was leaked, Graham condemned the leak of the opinion but cheered the opinion itself.

“If the Supreme Court overturns Roe v. Wade, which I believe was one of the largest power grabs in the history of the Court, it means that every state will decide if abortion is legal and on what terms,” Graham, whose bill would prohibit more liberal states from deciding those terms, said in a May 3 statement

“That, in my view, is the most constitutionally sound way of dealing with this issue and the way the United States handled the issue until 1973.”

Sen. Mitch McConnell, the Republican Senate leader, similarly applauded the opinion in June in a statement comparing Dobbs to the landmark desegregation ruling in Brown v. Board of Education, and Roe to the white supremacist ruling Brown overturned, Plessy v. Ferguson. 

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“For 50 years, states have been unable to enact even modest protections for unborn children,” McConnell said in a statement. “[Congressional Democrats] would rather attack our institutions than let the American people enact the reasonable protections they want.”

Graham’s office told reporters last night that he, along with the anti-abortion group Susan B. Anthony Pro-Life America, would unveil the "Protecting Pain-Capable Unborn Children from Late-Term Abortions Act” on Tuesday. 

Graham said that he views his bill as “a responsible alternative to the very radical position by Democratic senators,” in an interview with Fox News. Graham was likely referring to the Women’s Health Protection Act, which would codify the protections of Roe v. Wade, though that bill has also failed in the Senate. 

Graham has introduced a version of this measure in every Congress since 2013, but in previous years, the bill would have banned abortion after 20 weeks. Graham already introduced a version of this measure last January; he was joined in that effort by 45 Senate cosponsors, including McConnell. 

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This version would ban abortion after 15 weeks—a threshold similar to Florida’s new state law, which Republicans have presented as the moderate alternative to a “fetal heartbeat bill” like Texas’s. 

The bill would allow for exemptions in cases of rape, incest, and to protect the life and health of the mother, though the rape exemption would require patients to prove they obtained counseling or medical treatment, or reported the crime to law enforcement at least two full days before the abortion. The exception for the health of the mother also explicitly says that “psychological or emotional conditions” don’t count.

Republicans have sought to portray their posture as one of moderation which only prohibits “late-term” abortions, but that term is wholly used by anti-abortion rights conservatives to refer to third-trimester abortions—abortions after 24 weeks, which make up roughly 1 percent of all abortions in the U.S., according to the Kaiser Family Foundation. Such procedures are usually done to protect the life and health of the mother or due to severe fetal anomalies.

The pivot of some Republicans on the issue began amid declining midterm prospects for Republicans, who had been expected to easily win control of Congress. In August, the reliably conservative state of Kansas overwhelmingly rejected a measure that would have allowed state lawmakers to restrict abortion rights, and in the months since Roe v. Wade, Democrats running in special congressional elections have outperformed President Joe Biden’s showing in those districts two years ago, including a shock win in upstate New York last month. 

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Graham told Fox News Tuesday that Republicans should embrace his attempt to restrict abortion rights, and said candidates should "expose your Democratic opponent for being incredibly radical on the issue of abortion."

"I don't know what Democratic candidates in these contested states will say about a bill such as mine," Graham told Fox News. "But I know the American people, or a significant majority, support limiting abortion at 15 weeks." (A Gallup poll in May taken prior to the leak of the Dobbs decision found that a majority of Americans, 53 percent, support legal abortion under most or all circumstances.) 

Though the co-sponsors on this bill are not yet known, Sen. Rand Paul of Kentucky—who has fashioned himself as a libertarian—co-sponsored Graham’s bill last year to ban abortions after 20 weeks. But after the Dobbs decision, Paul told a Kentucky TV station he supported the “federalism” approach to abortion because “it allows each sort of community and state to make their own rules.” 

“We are a country with a lot of different ideas and different opinions as far as abortion goes,” Paul said. “So you’ll find that probably the rules will be different in California than they will be in Kentucky, and I think that reflects the population.”

Paul’s office did not immediately respond to a request for comment from VICE News Tuesday asking whether he would support Graham’s new bill.

Tagged:

abortion, Lindsey Graham, GOP, Abortion Ban, anti abortion extremists, roe v. wade

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