With some Republicans retreating from hard-line stances on abortion, voters recoiling from state-level restrictions, and the midterm cycle no longer projected to be a GOP runaway, it might seem a strange time for a Republican to propose a nationwide restriction on abortion.
But Senator Lindsey Graham did just that on Tuesday. Flanked by women leaders of the antiabortion movement, he called for a federal law that would ban abortion after 15 weeks of pregnancy in every state.
In so doing, the South Carolina Republican sought to wrest back control of the midterm narrative on abortion, in which Republicans are being cast as extremists. With his offer, Graham dared Democrats in Congress, who have already voted for an unsuccessful abortion rights package that he deemed “radical,” to outline their detailed positions on the divisive issue.
“To my Democratic friends, you’re going around calling all of us every name you can think of. We’re a bunch of whackos,” Graham said during a press conference. “Your idea is whacko, not ours. Let’s vote.”
Political analysts said his gambit was designed to help Republicans find a more reasonable position as they approach the elections.
“I do think that he is trying to stake out a position that Republicans can unify behind,” said Jon McHenry, a GOP pollster and strategist. “It gives them a talking point or a position that allows them to say, ‘We believe that women do have some discretion.’ ” And, he said, it volleys the volatile issue back to the other party. “Make Democrats defend or lay out the case for why you should be able to get an abortion at, say, six months,” said McHenry.
With less than two months before the midterm elections, Graham opened a conversation that many in his party had preferred to avoid. His proposal amplified the divisions within the Republican Party over how to handle the hot-button issue. It was swiftly dismissed on Tuesday by Senate minority leader Mitch McConnell, who said his members “prefer that this be dealt with at the state level.”
That gave abortion rights supporters the opportunity to point out that Republicans who had long said abortion should be decided by the states were now changing their tune.
“The idea that overturning Roe v. Wade would simply return the issue of our reproductive rights to the states was always disingenuous,” Planned Parenthood Action Fund president Alexis McGill Johnson said in a statement. “Anti-abortion rights congressional Republicans are showing us exactly what they plan to do if they get power: pass a national abortion ban.”
Republicans have clearly not settled on a strategy to counter a perceived voter backlash over the Supreme Court decision overturning the right to abortion, McHenry said. Voters in Kansas, a Republican stronghold, overwhelmingly supported abortion rights in an August referendum, while in New York and Alaska, Republicans lost congressional special elections in which abortion became a focal point. The results stunned political analysts and seemed to shift the landscape for the fall elections, which had been seen as strongly favorable for Republicans.
Since then, some Republican congressional candidates have begun backpedaling on abortion bans or downplaying their positions. Arizona Republican Blake Masters scrubbed his website of previous statements backing a personhood amendment and calling himself “100% pro-life,” after attacks from incumbent Senator Mark Kelly.
Rebecca Hart Holder, executive director of Reproductive Equity Now, dismissed Graham’s proposal as a concession to conservatives who want a national ban, even if they’d like it to go further. She suspects that Republican leaders, convinced a national abortion ban would be deeply unpopular at the moment, will revisit it after November.
“McConnell said right after the Dobbs decision that a federal abortion ban was on the table,” she said. “He’s backsliding rhetorically because voters don’t like the Dobbs decision. But that doesn’t mean he’s backsliding in terms of his agenda. He’s trying to get through the midterms.”
Abortion rights advocates also sharply disputed the premise that a 15-week restriction represented any sort of middle ground, especially since Graham’s bill would leave intact earlier state restrictions or outright bans.
The Supreme Court’s ruling centered on a Mississippi law that banned abortion at 15 weeks. Twenty-seven states currently allow abortion after 15 weeks, according to The New York Times. That includes Massachusetts, where abortion is legal until 24 weeks, with exceptions later in pregnancy if the health of the pregnant person is in danger or in cases of a grave or fatal fetal diagnosis.
The measure the House passed last fall and that Senate Democrats supported unsuccessfully this spring would have protected the right to abortion before viability — about 24 weeks — and after that point when there are risks to the life or health of the pregnant person.
But abortion opponents have seized upon those exceptions to accuse Democrats of supporting abortion without restriction “until the moment of birth.”
On Tuesday, Graham and antiabortion leaders challenged Democrats to set their own limits on abortion, likely expecting them to refuse and to alienate moderates in the process.
“Our opponents in Senate battlegrounds and House battlegrounds and the Democratic leadership of this body is not interested at all in consensus,” said Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America. “They’re not interested in the democratic process. They’re interested in imposing one view . . . on the rest of the country.”
Graham cast the 15-week restriction as “eminently reasonable in the eyes of the world,” repeatedly contrasting the United States’ approach with that of European countries that limit abortion to the earlier stages of pregnancy. France recently expanded abortion access to 14 weeks, the same as Spain, according to Human Rights Watch.
Polls have consistently found that most Americans support abortion rights, but that support diminishes with the duration of a pregnancy. A Wall Street journal poll in April found that more Americans favored than opposed an abortion ban after 15 weeks. Early this month, however, another Wall Street Journal poll found clear opposition to the type of abortion restrictions states are enacting. Sixty-two percent opposed an abortion ban at six weeks of pregnancy, and 57 percent opposed a ban at 15 weeks.
In the past, some people previously might have considered themselves “pro-life” if they wanted to keep abortion legal up until the point of viability — as Roe v. Wade provided, McHenry said. Now, he said, those people are recognizing that makes them “pro-choice.” Meanwhile, state abortion bans are being enacted without exceptions for rape and incest that many people favor.
“Choice is being defined as, ‘Is it ever OK to get an abortion?’ “ McHenry said. “That’s shifted the way some people see the issue, the way people are answering that question [in polls].”
Americans are also generally more inclined to support restrictions on “late-term abortions,” as Graham described his bill. But reproductive rights supporters said Graham was being misleading, since opponents typically use that term in reference to abortions after 21 weeks. Those abortions comprise approximately 1 percent of abortions.
The 15-week mark falls early in the second trimester of a typical 40-week pregnancy, well before the point of fetal viability, which Roe set as the dividing line between an individual’s right to an abortion and the state’s right to impose restrictions to protect a fetus.
For now, Democrats lead both chambers of Congress and are unlikely to be goaded by Graham into an abortion debate now, since they view it as a winning issue in November.
“To pretend that a national abortion ban is a compromise, to pretend that a federal ban is any sort of way of bridging the gap, is to misunderstand how clear voters have been on this issue,” said Christina Reynolds, vice president of communications for Emily’s List, which supports Democratic women candidates who back abortion rights. “Voters fundamentally believe that we should have the right and the freedom to make our own health care decisions.”
After the Supreme Court ruling, the divisive debate does not pivot on specific limits on abortion rights, she said.
“The debate is: Should you have this right or not?” Reynolds said. “Republicans are firmly on the side of not.”