Lindsey Graham’s Proposed National Abortion Ban is a Warning Shot

The war on abortion has clearly ramped up since the Supreme Court decided to overturn Roe v. Wade. And although most of the impact has been felt in conservative states, Republican Senator Lindsey Graham made it crystal clear this week that he intends to make this a national fight.

On Tuesday, Sen. Graham (R-SC) introduced the ‘‘Protecting Pain-Capable Unborn Children from Late-Term Abortions” Act. The bill, which is inaccurately labeled as regulating “late-term abortions,” bans abortion at 15 weeks. The bill makes no exceptions for the health of the fetus.

Senator Lindsey Graham’s office did not respond to requests for comment at the time of publication.

Although this isn’t the first time Graham has introduced a version of this bill, now that the constitutional right to abortion no longer exists, experts say the concept of a national ban weighs more heavily than it did before.

“We should understand what Lindsey Graham is doing with this latest version of the bill as a public statement, rather than an immediate threat to abortion access at a national scale, “ says Beth Ribet, an Adjunct Professor of Law at the UC Hastings Law School in San Francisco.

Based on the current Democratic majority, there’s no real path for this bill to pass this year, says Ribet, which means the bill will die come January.

“That doesn’t mean we shouldn’t take the threat very seriously,” she says. “It’s certainly a declaration of intention to attempt to advance a much more aggressive ban that would affect states which are not currently immediately devastated by the Dobbs decision.”

Dr. Joia Crear-Perry, an OB/GYN and founder of the National Birth Equity Collaborative, a Black maternal health and reproductive justice organization, says she doesn’t think the American people would stand for a national abortion ban.

“We are confident that if the citizens of the United States of America voted on a return to land owning white men dictating who should have and raise children instead of the person with the capacity for pregnancy… the people will vote for freedom,” says Crear-Perry.

But Congress aside, the next big question about a proposed national abortion ban is whether it could get past the Supreme Court. In the Dobbs v. Jackson decision, which overturned Roe v. Wade, the justices indicated that they were leaving the question of abortion access up to the states. But, Ribet says that wouldn’t prevent the justices from ruling in favor of a national abortion ban.

“If Congress were to pass a national ban I don’t think that the present Supreme Court would oppose that,” she says. “The Dobbs decision is silent on whether Congress could take action at a federal level.”

Emily Berman, an Associate Law Professor at the University of Houston Law Center, agrees with Ribet that the Supreme Court would likely uphold a national abortion ban.

“If I had to put my money on it, I would say yes, it’s more likely than not that the court would uphold this,” says Berman.

Another option for conservatives outside of legislating on abortion would be to get a case to the Supreme Court that would declare a fetus a person, says Berman.

“If you say that a fetus is a person entitled to the same constitutional protections as the person who has already been born, then arguably it becomes a crime to “kill the fetus,”” she says.

But like with Republicans in Congress, the Supreme Court might not feel they have the capital left to use after the Roe decision on something like a fetal personhood decision.

“Given the reaction to Dobbs… it seems to me that this is also not on the immediate horizon,” says Berman. “But I don’t doubt that there are people on the court who would love to make that the law of the land.”

Lauren Ralph, an epidemiologist and associate professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco School of Medicine, says a 15 week abortion ban would impact marginalized communities, including Black and disabled communities, and young people, the most.

“The data is clear about who is going to be the most impacted,” says Ralph. “The people that already faced barriers to getting an abortion or have been marginalized from healthcare in general.”

According to Ralph’s research, young people and people facing food insecurity, who are disproportionately Black, are more likely to discover they’re pregnant later in their pregnancy. These groups are also more likely to face barriers to accessing abortion that push-back the time at which they’re able to access care.

Katrina Kimport, a sociologist and Professor of Reproductive Sciences at the University of California, San Francisco School of Medicine, says a 15 week national ban would also take choices away from families who discover life-threatening fetal health conditions that don’t present until later in pregnancy.

These are parents grappling with the trauma of realizing that the baby they dreamed of isn’t going to be born, says Kimport. And under this law, they’d be forced to compound that trauma by giving birth anyway.

“We’re looking at really erasing and ignoring the complex emotional experiences of pregnant people,” she says. “It’s not everyone, but it’s a subset of people who’ve already gone through something very difficult. And then what the law will do, is compound that difficulty.”