On Tuesday, Sen. Lindsey Graham (R-South Carolina) led a group of GOP senators in introducing legislation to enact a nationwide ban on abortions after 15 weeks of pregnancy, highlighting a new focus for anti-abortion legislators.
Republicans, including Senator Graham, have often argued that abortion is an issue best handled at the state level. However, abortion advocates have long anticipated that Republicans would attempt to pass a national abortion ban once Roe v. Wade was struck down by the Supreme Court. Within hours of the court handing down its opinion in Dobbs v. Jackson Women’s Health, Republican legislators began publicly discussing their interest in supporting a national abortion ban.
The law proposed this week by Senator Graham would criminalize the provision of abortion after 15 weeks with very narrow exceptions for rape, incest involving a minor, or substantial threat to the pregnant person’s physical health. There would be no exceptions for severe fetal abnormalities, including those incompatible with life. Health care providers who perform abortions after 15 weeks would face prison time of up to five years, fines, or both.
People who terminate their pregnancies — and the parents of minors who terminate their pregnancies — would also be able to pursue civil suits against their abortion providers under the proposed legislation. Anti-abortion politicians use this strategy both to feign concern for abortion patients, whom they falsely argue often experience regret, and to target abortion providers with heightened legal risk. Such laws often leave abortion providers with no option but to purchase extra costly liability insurance that other health care specialties do not require.
At Tuesday’s press conference, flanked by representatives of anti-abortion groups, including March for Life and the National Right to Life Committee, Senator Graham justified his 15-week abortion ban with unscientific claims, spreading the lie that fetuses can sense physical pain beginning at 15 weeks. According to the American College of Obstetricians and Gynecologists, scientific evidence has “conclusively established” that a human fetus cannot experience pain “until after at least 24-25 weeks.”
The proposed bill uses the nonmedical term “late-term abortion” to describe abortions performed after 15 weeks — a usage that notably diverges from the conventional use of the phrase by anti-abortion politicians and groups to describe the medical termination of a pregnancy between 21 and 24 weeks.
Evidence suggests that Senator Graham’s bill would negatively impact the physical, mental and socioeconomic well-being of abortion seekers. The findings of the Turnaway Study, a landmark research study conducted by researchers at UCSF, found that those who were denied an abortion due to a gestational limit had significantly worse socioeconomic and physical and mental health outcomes compared to those who received abortion care.
At his press conference, Senator Graham claimed a 15-week ban would bring U.S. abortion policy “in line with other developed nations,” a misleading claim that obfuscates the fact that in most of the countries he named as examples, exceptions for those seeking abortion care after the legal limit are generally permitted on the broad grounds of protecting the physical or mental health or the socioeconomic well-being of the pregnant person.
Due to the current Democratic majority, the Senate will not vote on Graham’s bill ahead of November’s midterm elections. However, if Republicans gain control of Congress, a vote on a nationwide abortion ban is possible (though it would likely be vetoed by Biden). Such legislation would be devastating for abortion seekers, health care providers and their communities, especially communities of color and poor people.
It was not long ago that most Democratic politicians were complacently dismissive of warnings that Roe v. Wade was under threat, and even though it is not politically feasible in this current moment, it is key to understand that anti-abortion groups and politicians will continue working toward the implementation of a nationwide abortion ban. In a demonstration of the anti-abortion right’s tendency to employ deliberate long-term strategies in order to realize their objectives, Senator Graham suggested at his press conference Tuesday, “if we stay on this and keep talking about it maybe in a decade this will be law.”
Reproductive Care Is Already in Crisis
Abortion care in the United States is already in a state of emergency. Providers in restricted states are scrambling to provide care in a constantly changing legislative environment. Abortion funds have closed or paused services due to legal concerns. Prominent reproductive health care organizations have abandoned patients, providers and funds in restricted states, and abortion advocates are increasingly frustrated by the Biden administration’s lack of action.
Meanwhile, reproductive health care clinics in less restricted states are struggling to manage the increased demand due to abortion patients traveling from out of state, and are consequently seeing significantly increased wait-times for abortion appointments. Nationwide, financial and practical barriers to accessing abortion care, including lack of insurance coverage, the necessity of arranging for time off work and childcare, and the ubiquity and aggressive tactics of fake abortion clinics already delay patients’ access to abortion care.
A national abortion ban would further increase the risk of criminalization of pregnant people based on their medical conditions or actions taken during their pregnancy. A recent report by the reproductive legal advocacy group If/When/How found that people have been investigated for pregnancy loss in 26 states, even though only a handful of states specifically prohibit self-managed abortion.
Pregnant people who are already at a higher risk of criminalization — in particular poor people, immigrants, Black people, and other people of color — have been jailed for substance use during pregnancy, for self-managing abortions, or for unintentional miscarriages. As more people are forced to obtain extralegal abortions, the most vulnerable pregnant people face criminalization and imprisonment. Recent arrests in Alabama of Ashley Banks and in Texas of Lizelle Herrera show the devastating impacts of this increased policing of pregnant bodies.
Senator Graham’s proposed bill effectively puts abortion on the ballot at the upcoming midterm elections, but voting alone is far from sufficient to defend abortion access. The majority of Americans are opposed to abortion bans, and it is crucial that we harness the present political momentum around this issue to build a mass movement to protect and expand abortion access nationwide.
We can’t wait for Democratic lawmakers to address this state of emergency. We must organize our communities and workplaces to demand reproductive justice and advocate on behalf of patients and providers, especially those in hostile and legally precarious environments. We will not and cannot accept any abortion restrictions or bans, all of which coerce and force people into continuing their pregnancies.
Taking action to defend abortion access is a community responsibility. As individuals we can set up a recurring donation to an abortion fund, volunteer as a clinic escort and share information about safe methods of self-managed abortion to alleviate the burden of the overloaded reproductive health care system across the country.
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