“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,” Senator Lindsey Graham, a South Carolina Republican, commented on Twitter. “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.”
That was in May. Last week, Graham abruptly pulled a 180. Now, rather than leave abortion policy in the hands of the states, he wants the federal government to be the party deciding “if abortion is legal and on what terms.”
On Tuesday, Graham introduced legislation that would make it a federal crime, punishable by up to five years in prison, to perform an abortion after the 15th week of gestation. Only when deemed necessary to save the woman’s life, or in cases involving rape or incest, would abortion be permitted after 15 weeks.
Of course this bill is going nowhere and not just because Republicans are in the minority on Capitol Hill. Several of Graham’s Republican colleagues, including Senate minority leader Mitch McConnell, immediately announced their opposition to a federal abortion ban. So did several Republican Senate candidates. Even if Republicans regain control of both houses of Congress in November, Graham’s bill would face an uphill climb.
Democrats wasted no time denouncing Graham’s proposal as “extreme.” Senator Patty Murray of Washington called it an “extreme abortion plan” by Republicans who intend “to ban abortion in every single state.” Representative Hakeem Jeffries of New York, condemning Republicans with exaggerated emphasis, declared: “It’s extreme if your top agenda is a Nation. Wide. Ban. On. Abortion.” A Washington Post columnist pointed to the bill as “proof of GOP’s abortion extremism.” There was a lot of that.
But the problem with Graham’s legislation is not that it proposes something harsh or fanatical or that it would amount to a nationwide ban on abortion. The overwhelming majority of abortions in the United States — 93 percent, according to the Centers for Disease Control and Prevention — are performed during the first 13 weeks of pregnancy. So a law permitting abortions through 15 weeks would leave untouched almost all abortions that currently take place in the United States. Graham’s law is certainly more moderate than some antiabortion measures proposed since the Supreme Court overturned Roe v. Wade in June. For example, the Poynter Institute reported recently that 15 states with new or forthcoming limits on abortion do not permit exceptions for rape and incest.
No: The problem with Graham’s legislation is that it isn’t constitutional. Congress does not have the power to ban abortion. Nor does it have the power to, as many Democrats would like, make abortion legal across the board.
Nothing in the Constitution authorizes Congress to set national rules on abortion. For decades, critics of Roe — including notable prochoice legal scholars — consistently made that argument. Over and over, those who opposed Roe maintained that nationalizing abortion policy had been a profound mistake and that it should be overturned so abortion could once again be debated and resolved at the state level.
Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization never even mentions Congress. It recounts in detail, however, the ways in which abortion had been the exclusive purview of state law for nearly two centuries. “In some states,” Alito wrote, ”voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other states may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
The bottom line in Dobbs was that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
To repeat: This had always been Graham’s position in the past. In a June appearance on Fox News, he told Martha MacCallum that abortion laws should be crafted in state legislatures, not Congress. “All of us in the conservative world,” he said, “have believed that there’s nothing in the Constitution giving the federal government the right to regulate abortion.” His flip-flop now has everything to do with political calculation and nothing to do with constitutional principles.
Those principles are not obscure. Under our legal system, the federal government is not empowered to make policy in any area it chooses. Congress’s powers are limited to those “herein granted,” as Article I of the Constitution says. The powers granted are considerable — Congress can, among other things, collect taxes, borrow money, approve post offices and roads, declare war, raise a military, and establish courts — but they are not unrestricted. The 10th Amendment was ratified to underscore the limits of congressional authority: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Graham claims that his proposed 15-week cutoff for abortion is authorized by the Due Process and Equal Protection clauses of the 14th Amendment, which gives Congress the authority to protect the civil rights of “any person.” He contends that “any person” includes the unborn. But the Supreme Court has never endorsed that interpretation — neither in Roe nor in Dobbs. Graham also points to the constitutional power of Congress to “regulate commerce … among the several states” as another source of authority. That won’t fly. “Abortion isn’t interstate commerce, as it takes place entirely in one state,” writes Glenn Harland Reynolds, a law professor at the University of Tennessee, “and regulation of medical procedures is traditionally the domain of the states, not the federal government.” Besides, Graham has made it clear that the purpose of his bill is not to regulate commerce. It is to regulate abortion.
For nearly half a century, prolife leaders stressed that the Constitution is silent on the question of abortion, that abortion policy was therefore the business of the states, and that by imposing a top-down, one-size-fits-all abortion regime, Roe had prevented the political system from democratically resolving the issue, with deeply unfortunate results. Graham’s bait and switch is shameless. It should be firmly rejected not just by supporters of abortion rights, but even more so by prolife activists who care about their reputation and don’t want Graham’s now-obvious lack of integrity to be imputed to them.
Jeff Jacoby is a Globe columnist. He can be reached at firstname.lastname@example.org. Follow him on Twitter @jeff_jacoby. This column is excerpted from the current issue of Arguable, his weekly newsletter. To subscribe to Arguable, visit bitly.com/Arguable.