Lindsey Graham’s 15-Week Abortion Ban

As a policy, 15 weeks of abortion on demand is about on par with the laws in Western Europe. That would continue to permit most of the abortions done in the U.S. In 2019, 92.7% were performed at 13 weeks or before, according to a study by the Centers for Disease Control and Prevention. That’s why Mr. Graham styles his bill a ban on later abortions, which the legislative text describes as procedures that often “involve the use of surgical instruments to crush and tear an unborn child apart.”

Mr. Graham’s bill has exceptions for when the mother’s life is in “physical” danger, “not including psychological or emotional conditions.” It also includes exemptions for rape victims. Mr. Graham’s goal is to draw a line that the GOP can defend to the public. According to the Gallup figures, 67% of Americans want abortion to be “generally legal” in the first 12 weeks. That falls to 36% in the first 24 weeks.

But the nuances might be lost on voters, and Democrats are trying to ensure that they are. Speaker

Nancy Pelosi’s

statement Tuesday was illustrative. “The nationwide abortion ban proposal put forth today,” she said, “is the latest, clearest signal of extreme MAGA Republicans’ intent to criminalize women’s health freedom in all 50 states and arrest doctors for providing basic care.”

That’s demagogic, but notice how Mrs. Pelosi refers to it as a “nationwide abortion ban,” without mentioning anything about 15 weeks.

The Democrats’ bill in Congress is far more extreme. Their bill would protect abortion on demand through fetal viability, about 23 weeks. After that line, it would also guarantee abortion access whenever the pregnancy is a risk to the patient’s “health,” which isn’t defined and is often interpreted to include emotional factors. The bill appears to protect sex-selective abortions, if parents who wanted a boy decide they would prefer to terminate a girl.

Republicans already had plenty of political ammunition, and signing on to Mr. Graham’s bill leaves them open to charges of hypocrisy. After Roe v. Wade, conservatives spent five decades arguing that the Supreme Court had inflamed the country by nationalizing the debate on abortion, which is properly a state issue. This summer the Justices reversed that mistake in Dobbs, and the result has been hurly-burly democratic arguments in state legislatures.

There’s no need to re-nationalize the question, and it isn’t clear Congress has the authority to do so. Mr. Graham’s bill cites the Constitution’s Commerce Clause and the Equal Protection Clause as justifications for federal power, but neither is convincing. If Republicans care about originalism, and many of them do, then it’s a mistake to start arguing that abortion regulations qualify as “commerce.”

Fighting for policy change in all 50 states is arduous, with victories offset by defeats and unsatisfying compromises. Democrats and some Republicans don’t want to bother, since it’s easier to pass one bill in Congress, constitutional or not.

But by Mr. Graham’s political logic, if voters in Colorado, Pennsylvania or Arizona think 15 weeks is too restrictive, they now have a reason to vote against those GOP Senate candidates. Every Republican candidate will be asked to take a stance, and a Senate majority is made by swing states.