Senate Republicans’ plans for a national abortion ban in the wake of the US Supreme Court’s June decision to overturn Roe v. Wade may be backfiring on them.
On Tuesday, Sen. Lindsey Graham (R-SC) introduced a bill that would ban abortions after 15 weeks of pregnancy based on the unproven claim that fetuses can feel pain at that point in development. It includes exceptions for cases of rape, incest, and to save the life of the pregnant person.
The proposal is stricter than versions of the bill Graham has previously introduced, which would have banned abortion after 20 weeks of pregnancy, and goes further than many existing state restrictions on abortion. According to the Guttmacher Institute, 44 states ban abortion after a certain point in pregnancy, most after about 20 weeks since the pregnant person’s last menstrual period.
Few Republicans have announced their support for the bill, however. It comes at a delicate moment for the party nationally, just weeks ahead of the midterms and as they try to temper voters’ concerns about what they might do to further restrict abortion access if they win control of Congress. Senate Minority Leader Mitch McConnell, Sen. Shelley Moore Capito (R-WV), and Sen. John Cornyn (R-TX) all suggested to Politico that Graham’s bill did not reflect the tack that most other Republicans would take when it comes to abortion.
“That wasn’t a conference decision. It was an individual senator’s decision,” Cornyn said.
Democrats have already begun to attack the legislation as a first step toward a total ban. “For MAGA Republicans—it’s always been about making abortion illegal everywhere,” Senate Majority Leader Chuck Schumer tweeted Tuesday. Republicans, however, claim it is only a ban on “late-term abortions,” seemingly in an effort to paint Democrats as extreme for supporting a bill that would have banned states from enacting many kinds of abortion restrictions.
“That [Democratic bill] is extreme in every fashion and we should be talking about legislation for the nation as a whole that would put us in line with the science and the civilized world,” Graham said in a press conference Tuesday.
Abortion rights advocates argue that having an abortion at 15 weeks of pregnancy does not qualify as a “late-term abortion,” which is not a medical term and typically refers to abortions after at least 21 to 24 weeks of pregnancy. Though most abortions happen earlier in pregnancy, many medical anomalies, including ones that are inconsistent with life, can only be detected in tests conducted at the 20-week mark. There’s also a concern that demand from states that have banned or severely restricted abortion could stretch abortion clinics’ resources thin, forcing pregnant people to wait longer than they might have previously for an abortion.
Given these concerns — and Democrats’ support for abortion access — there’s little chance of Graham’s bill coming up for a vote this year. Instead, Graham promised action on it if Republicans retake control of Congress following the midterms this fall.
“If we take back the House and Senate, I can assure you that we’ll have a vote on our bill,” Graham said.
The bill probably won’t become law, even if the GOP is in power
It’s not clear that the bill would pass even if the GOP reclaims Congress.
Some 85 percent of Americans think that abortion should be legal in some circumstances, according to a long-running survey by Gallup. Embracing such a broadly unpopular policy could carry electoral costs for Republicans by further activating Democratic voters. And the party would need to consolidate power not just in Congress but also in the White House to actually make it law.
Though Republicans initially celebrated the Supreme Court’s decision to overturn Roe, they have since avoided the subject on the campaign trail in an apparent effort to avoid turning off persuadable voters ahead of the midterms. On Tuesday, McConnell did not take a stance himself and told reporters that most GOP senators would prefer abortion to remain under the purview of the states rather than pursue a national ban like Graham’s.
While abortion is still behind the economy, gun policy, and education in terms of voters’ top priorities, it appears to be animating voters. In New York’s 19th District, the Democratic winner of a special election centered his campaign on abortion access. In Kansas, voters turned out in record numbers to resoundingly reject a constitutional amendment that would have allowed state lawmakers to further restrict abortion access in the state. Young people (particularly young women) are also registering to vote at a significantly higher rate in states where abortion rights are under threat.
Republicans are no longer favored to win control of the Senate and are preparing for the prospect of a narrow majority in the House. But even if they reclaim the Senate, the bill would need 60 votes to overcome a filibuster, a significantly tougher task considering not even all Senate Republicans are in favor of restricting abortion. Republicans could also potentially choose to eliminate the filibuster to pass the ban.
They have previously introduced bills that would recognize life from the moment of fertilization, which would effectively ban abortion nationwide. But only 19 senators and 164 House members supported the legislation the last time it was introduced, far short of the numbers it would need to pass.
Should they overcome that issue, a Democrat in the White House would likely veto any such legislation. But there’s no guarantee Democrats will hold the executive branch after 2024, especially given that President Joe Biden’s approval rating continues to struggle, and that polling early this year found most Americans don’t want Biden to seek reelection.
Those political hurdles make Graham’s bill mostly messaging on where he wants Senate Republicans to draw the line on abortion, which for now is still short of a total ban. It remains to be seen whether leaning into that stance can help them rebut Democrats’ midterm attacks about the GOP being too extreme.