This article has been updated with a response from the White House.
Republicans, led by Sen. Lindsey Graham (R-S.C.), on Sept. 13 unveiled a bill that would ban many abortions at a federal level.
The bill, dubbed the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act, is similar to another bill introduced in the Senate by Graham last year. However, it would reduce the prohibition from a 20-week ban to a 15-week ban.
The legislation seeks to balance pro-life policy goals with some exceptions and exemptions, targeting doctors who would perform illegal abortions rather than women who seek them out.
For instance, the bill establishes a new federal criminal offense for performing or attempting to perform an abortion if it is probable that the infant is 15 weeks old or older, roughly the point at which unborn children are capable of feeling pain and distress, though scientists remain divided on when exactly an infant can feel pain.
Doctors and other health professionals who violate the 15-week rule would be on the hook for a fine and as much as a five-year stint in federal prison.
However, the legislation would allow some exemptions, a concession to critics of hardline pro-life policies.
Specifically, a doctor under the bill is permitted to perform an abortion if the procedure is deemed medically necessary to save the life of the pregnant woman or if the pregnancy is the result of rape or incest. The text lays out certain procedures and standards physicians must follow if they are relying on one of these exemptions to perform a late-term abortion.
The bill would not target, either civilly or criminally, pregnant women who seek out an illegal abortion if the bill passed.
Graham unveiled the new bill during a Sept. 13 press conference, where he was joined by representatives from the group “Susan B. Anthony Pro-Life America.”
Last year, when Graham introduced the bill to the Senate for the first time during the 117th Congress, he was joined by 45 Senate colleagues who co-sponsored the bill.
Conspicuously absent from that list were Sens. Susan Collins (D-Maine) and Lisa Murkowski (D-Alaska), who have in the past been ambivalent in their attitudes toward abortion, generally taking a center-of-the-road approach between Republicans and Democrats on the issue.
Still, at the time the bill was moot inasmuch as it violated the Supreme Court’s (SCOTUS) decision on Roe v. Wade, which ruled that abortion is a broadly protected federal right. Since then, the conservative majority on SCOTUS ruled in Dobbs v. Jackson Women’s Health Clinic that no such federal right exists, largely returning the issue to the states for adjudication.
At the time that Roe was decided, the federal government largely remained out of the issue entirely, though almost every state in the union had some substantial limits or regulations on abortion that were superseded by the SCOTUS decision.
In 2007, the Supreme Court upheld a 2003 federal abortion law banning partial-birth abortions, a practice wherein the infant is sometimes born alive before being killed by the physician.
Still, Graham’s bill would go much further, criminalizing all abortions in the United States after 15 weeks and overleaping the laws of some states which allow abortion until the day an infant is born.
During a speech on the Senate floor before Graham unveiled the bill, Senate Majority Leader Chuck Schumer (D-N.Y.) called it a “radical bill to institute a nationwide restriction on abortions,” and made clear that his party opposed the bill.
During the press conference, Graham noted that when doctors must operate on unborn babies at or beyond the 15-week mark, it’s standard practice to provide anesthesia, which Graham cited as proof that unborn infants can and do feel pain.
“I think we should have a law, at the federal level, that would say after 15 weeks no abortion-on-demand except in cases of rape, incest, and danger to the mother’s life,” Graham said.
The bill, Graham argued, far from being the “radical” legislation pro-abortion advocates have painted it as, is mainstream practice on a global level.
“With my bill … we would be in the mainstream of most everybody else in the world,” Graham said, noting “47 of the 50 European countries have a ban on abortion from 12–15 weeks.”
15 weeks, Graham noted, is longer than major countries like Germany, France, Spain, Denmark, Norway, and others allow abortions. This line, Graham said, was drawn on the basis of the child’s ability to feel pain.
Abortions on pain-capable children, Graham added, “should be a no-go.”
Graham’s Bill Is One of Many
Graham’s bill is not the only proposal his party has put forward in light of the SCOTUS ruling.
In the wake of the SCOTUS decision to overturn Roe v. Wade, House Republicans, who are heavily favored to win the House this November, are weighing their options for a national abortion ban.
House Republicans made similar efforts when they held the lower chamber in 2015 and 2017; on two occasions, they passed another version of the Pain-Capable Unborn Child Protection Act, which would have banned abortion nationally after 20 weeks of gestation. The measure floundered in the Senate after it failed to overcome the 60-vote filibuster threshold.
Rep. Chris Smith (R-N.J.), who is sponsoring the same bill in the 117th Congress, has told CNN that he is weighing changing the measure to provide for a 15-week abortion ban, as Graham appears to have done in the Senate text of the bill. This move, House Minority Leader Kevin McCarthy (R-Calif.) told CNN, would have the support of Republican leadership.
Another bill, the Born-Alive Abortion Survivors Protection Act, has been mentioned in the past as another option for a GOP majority.
That bill, sponsored by Rep. Ann Wagner (R-Mo.), would require that medical care be given to babies who survived botched abortion attempts. Democrats have suggested that the measure is superfluous and that existing laws already ensure such protections for infants.
Wagner’s bill, House Minority Whip Steve Scalise (R-La.) said in May, would be on the floor “day one” of a GOP-controlled legislature.
The Life at Conception Act, sponsored by Rep. Alex Mooney (R-W. Va.), would go even further, recognizing the right to life from the moment of conception—a position that even few GOP-led legislatures have yet put into law.
Mooney’s bill has an impressive 163 GOP co-sponsors, suggesting that the position is shared by a substantial portion of the House Republican caucus.
Rep. Bob Good (R-Va.), one of the bill’s co-sponsors, has filed a discharge petition for the bill, which could force a vote on it over the head of Speaker of the House Nancy Pelosi (D-Calif.). So far, the petition has 55 signatures; however, 218 signatures would be needed to push the bill to the floor for a vote, requiring several defections among Democrats’ ranks to achieve even if every Republican supported the petition.
The Heartbeat Protection Act, sponsored by Rep. Mike Kelly (R-Pa.), would ban abortion once a heartbeat is detectable, which is usually around 6 weeks of gestation.
Another bill, the Protecting Life on College Campuses Act, sponsored by Rep. Chip Roy (R-Texas), would seek to reduce abortions by threatening to remove federal funding from schools that provide abortion pills or other abortion services for students or employees. This bill, while less wide-reaching than others, would send a clear message of the mood of Congress if it were passed.
“The Protecting Life on College Campuses Act is about guarding young college women and their unborn children from the predatory abortion industry’s radical and reckless push for universal access to abortions,” Roy said of the bill, adding in a separate statement that it would “shield the conscience of every American taxpayer.”
Sen. Steve Daines (R-Mont.) has sponsored the same bill in the Senate.
However, aside from a few comments, GOP leaders have been tight-lipped about the options that they might pursue to ban abortion if they take back the House, despite praising the SCOTUS decision in Dobbs v. Jackson Women’s Health Clinic that overturned Roe.
“We will continue to look wherever we can go to save as many lives as possible,” McCarthy said in a press conference the day of the decision, avoiding mentioning any specific policy initiatives that Republicans might sponsor.
On the other hand, pressure is mounting on GOP leaders to take action if they recapture the House in November.
In a letter to McCarthy and Scalise, a coalition of several major pro-life groups demanded that Republicans bring Kelly’s Heartbeat Protection Act to the floor for a vote if they take back the House.
“Only federal law can protect unborn babies from states that will continue to allow and even subsidize abortion on demand up until birth. The House of Representatives is best positioned to lead with a robust pro-life agenda beginning now and accelerating in January should you retake the majority,” the coalition said.
White House Responds
In a statement, the White House expressed its opposition to Graham’s bill.
“Today, Senator Graham introduced a national ban on abortion which would strip away women’s rights in all 50 states,” said the statement taken from White House Press Secretary Karine Jean-Pierre. “This bill is wildly out of step with what Americans believe.
“While President Biden and Vice President Harris are focused on the historic passage of the Inflation Reduction Act to reduce the cost of prescription drugs, health care, and energy—and to take unprecedented action to address climate change—Republicans in Congress are focused on taking rights away from millions of women. The President and Vice President are fighting for progress, while Republicans are fighting to take us back.
“President Biden and Congressional Democrats are committed to restoring the protections of Roe v. Wade in the face of continued radical steps by elected Republicans to put personal health care decisions in the hands of politicians instead of women and their doctors, threatening women’s health and lives.”
Federal Abortion Ban Faces Long Odds
Ultimately, any GOP-pushed federal abortion ban faces long odds of passing, even if Republicans take both the House and Senate in 2022.
While a GOP-led House would be likely to support such a bill, its prospects in the Senate are less sanguine for proponents.
Like almost all legislation that comes to the upper chamber, a federal abortion ban would need to win the support of at least 60 senators. Even in the most optimistic predictions for Republicans, a supermajority in the Senate during the 118th Congress is astronomically unlikely.
Thus, a Senate GOP majority would need the backing of as many as nine Democrats, assuming all Republicans were on board with the measure. But unanimous Republican approval for a national abortion ban, in view of Collins’s and Murkowski’s middle-of-the-road approach to the issue, is far from guaranteed.
During the 117th Congress, every Democrat except Sen. Joe Manchin (D-W.Va.) gave their approval to the Women’s Health Protection Act, a bill that would have codified and greatly extended the standards laid out in Roe v. Wade.
In view of these factors, the challenges of getting a national ban through the Senate are practically insurmountable.
But even if the bill were advanced, its final challenge would be to win the approval of President Joe Biden, whose administration has been staunchly pro-abortion.
Thus, though the move reflects a development among Republicans, who are looking to capitalize on the momentum of the Dobbs decision, any bill the party could put forward would likely only be symbolic and unable to overcome the hurdles of either the Senate or the White House.