On Tuesday, South Carolina senator Lindsey Graham introduced a modest and sensible bill that would establish a 15-week upper limit on abortion in the United States. The bill includes exceptions to protect the life of the mother and in cases of rape and incest, and it would not override earlier state limits on abortion. A national 15-week limit — two weeks into the second trimester — is a bit later than the legal abortion limit in several European countries, but it would nevertheless save the lives of tens of thousands of babies killed in America each year in gruesome late abortions.
A 15-week limit stands in stark contrast to congressional Democrats’ radical federal legislation that would effectively allow abortion in all 50 states through all nine months of pregnancy. But some congressional Republicans are now balking at Graham’s bill. Why? They suggest they believe abortion might be an issue exclusively for state legislatures, but their recent votes suggest they don’t really believe that.
For nearly a decade, Graham has been the lead sponsor of a similar late-term abortion ban (one that established a limit at 20 weeks after conception) that has had almost unanimous support from congressional Republicans. When the Senate voted to advance the 20-week bill in 2015, 51 Republicans and three Democrats supported it. After the Dobbs decision made clear that limits before viability would be upheld, Graham moved the limit to 15 weeks, a threshold that would save more lives and can still earn necessary popular support. A 15-week federal limit would still only prohibit perhaps 5 percent of abortions, leaving states free to set restrictive or permissive policies over the other 95 percent of cases.
Two decades ago, a large bipartisan majority of Congress banned partial-birth abortion, but that law did not actually protect any lives — it merely banned one grisly method of late abortion. As one senator who voted for the partial-birth abortion ban lamented, “The bill was a step in the direction of ending late-term abortions. But . . . it did not, as I would have liked, ban all post-viability abortions.” The senator who spoke those words in 1997 was Delaware Democrat Joseph R. Biden.
Twenty-five years later, even after the end of Roe, barbaric late-term abortions are still legal in most of the country. In several states and the District of Columbia, there is no legal limit on abortion through all nine months of pregnancy. Down the street from the White House, one abortion clinic advertises elective abortions up to 27 weeks. NPR recently reported that a new “all-trimester” clinic will soon open in Maryland that will perform abortions up to the middle of the eighth month of pregnancy.
Premature infants born as early as 21 to 22 weeks of pregnancy can sometimes survive their stays in the neonatal-intensive-care unit and grow up to be healthy children and adults. According to a 2013 study, most abortions between weeks 20 and 28 of pregnancy are not performed for “reasons of fetal anomaly or life endangerment.”
What’s the difference between an elective abortion at 22 weeks and killing a premature infant born alive at 22 weeks? Why should elective abortion be legal at 15 weeks — when some experts believe unborn children may be able to feel pain? At 15 weeks, as one maternity website notes, “your baby is looking more like a little person, with eyelids, eyebrows, eyelashes, nails, hair, & well-defined fingers and toes.”
We are persuaded that the undoubted federal power to defend basic civil rights under the 14th Amendment extends to this issue, as Republicans have held in their platform for decades. Some conservatives disagree, believing that the Constitution does not allow Congress to pass laws that provide protection to the lives of human beings in the womb. A subset of them suggest that this is a settled matter, which is not true. The Dobbs decision says nothing about the appropriate division of authority between the states and the federal government over this issue; the most explicit statement on this point, from Justice Kavanaugh’s concurrence, suggests it is for the political process to determine. Most congressional Republicans now ducking the issue — saying, in a departure from past Republican practice, that only state legislatures should regulate abortion — are acting based on mistaken political considerations, not principle. It is not too late to recover from their tactical blunder.