Lindsay Graham’s Gambit Is the Next Step Toward a Nationwide Abortion Ban

Posted in: Reproductive Law

Lindsay Graham has a message for women living in Massachusetts, New York, California, and other deep blue states: We are coming for you.

No one should think that “pro-life” Republicans, including South Carolina’s Republican Senator, really mean all that stuff about letting states make decisions about abortion. They are determined to take away reproductive freedom as soon as they control both houses of Congress and the Presidency.

Graham sent that message loud and clear this week when he announced his plan to introduce the so-called Protecting Pain-Capable Unborn Children from Late-Term Abortions Act. His bill would impose a national 15-week abortion ban.

To be sure, it can be hard to take Graham seriously. He has made a career as a political weathervane, shifting and shaping positions to curry favor with whoever is ascendant at the moment. But it would be a risky mistake to dismiss or ignore this latest gambit.

Even so, we should not miss the elements of a head-spinning flip-flop that have accompanied this move.

In May, following the leak of Justice Samuel Alito’s Dobbs v Jackson Women’s Health opinion, Graham praised its embrace of states’ rights.

As he put it at the time, “If the 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…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.”

And, in a recent CNN interview, Graham said: “I’ve been consistent. I think states should decide the issue of marriage and states should decide the issue of abortion.”

In fact, consistency has never been Graham’s strong suit. Especially in the case of abortion, he should not have been able to say with a straight face that he has always thought abortion should be decided by the states.

Graham’s newest bill will be the sixth national abortion ban that he has offered during his time in Congress.

To be fair, another statement he issued in the run up to Dobbs noticeably omitted any reference to the states, foreseeing only a return of the abortion issue to “the legislative branch.” So maybe he has always wanted to have it both ways.

“It has long been my personal view,” Graham said, “that ‘substantive due process’ as a legal concept is unbounded and dangerous. Under Roe vs. Wade, elected legislators are prohibited from having a say about the rights of the unborn before medical viability. The Court’s legal reasoning behind this is an example of ‘substantive due process.’”

“The Dobbs case” he continued “is historic and will afford the Court the opportunity to return political decision making to the legislative branch and revisit ‘substantive due process.’”

Recall that Justice Alito’s Dobbs opinion went out of its way to make clear that when it referenced the role of legislatures in a post-Roe world, it was talking about state legislatures. Alito said that overturning of Roe was necessary to return the abortion issue to the states and foresaw a time in which the Court would respect “state abortion regulations.”

“The Constitution,” Alito wrote, “does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority…. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe … recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’”

Alito noted that defenders of Roe had failed to discharge their burden of showing “that the Court had the authority to decide how abortion may be regulated in the States. They have failed,” he said, “to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives.”

Finally, Alito faulted Roe for failing to respect diversity among the states in their attitudes toward abortion, and imposing “the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State.”

Justice Brett Kavanaugh, while leaving the door open for Congress to do what Sen. Graham wants it to do, used his Dobbs concurrence to highlight the rights of states to go their different ways on the abortion issue.

As Kavanaugh observed, “Today’s decision therefore does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion…. By contrast, other States may maintain laws that more strictly limit abortion. After today’s decision, all of the States may evaluate the competing interests and decide how to address this consequential issue.”

But, before the ink was dry on Alito’s Dobbs opinion and Kavanaugh’s concurrence, the radical vanguard of the pro-life movement announced its displeasure with their respect for federalism and deferential posture toward state legislatures.

Princeton Professor Robbie George and Oxford University’s John Finnis had offered a preview of this criticism in a brief they filed with the Court as part of its consideration of Dobbs.

George and Finnis argued that “the term ‘person’ in the Fourteenth Amendment—an Amendment that, among other things, imposes on States an obligation to afford to persons the equal protection of the laws (including the laws against violent assaults and homicides)—was publicly understood at the time of the framing and ratification of the Amendment as including the child in the womb.”

They argued, “The permission by a state of elective abortion, therefore, is a violation of the Constitution” and urged the Court to declare it to be so.

Following Dobbs, former Vice President Mike Pence picked up the George/Finnis line and said that “Now that Roe v. Wade has been consigned to the ash heap of history, a new arena in the cause of life has emerged.”

He, too, was clear that Dobbs had not gone far enough to suit him. He urged the pro-life movement not to rest on its laurels. As he put it, “Having been given this second chance for life, we must not rest and must not relent until the sanctity of life is restored to the center of American law….”

But perhaps the fullest articulation of the pro-life movement’s barely concealed contempt for Dobbs was provided by Hadley Arkes in the Catholic journal First Things: he labeled Dobbs “the end of the beginning.”

Arkes, offering a familiar, if patronizing, instruction to his “friends on the Court,” said that they had failed to offer a “coherent jurisprudence” of abortion. He noted a glaring omission in their opinions. As he put it, “What is notably erased from the screen is any recognition of that small creature in the womb, as one who might have the standing of a human being, and whose injuries ‘count.’”

Arkes warned that Dobbs should not be touted “as a pro-life proclamation even as abortions proceed at a massive level in the blue states.” And he openly acknowledged what he labeled the pro-life movement’s “disappointment.’

“We lament,” Arkes explained, “the fact that the Court does not move to put the critical anchoring point in place as it sends the matter back to the states: Namely, that as we draw on the objective facts of embryology, that offspring in the womb has never been anything less than human from its first moments, and not merely a part of the mother.”

In the end, it may not do justice to Graham’s role in the coming abortion battles to label him simply a “weathervane.” He is, at least for the moment, a stalking horse for the pro-life positions of people, like George, Finnis, Pence, and Arkes, who have all made their careers as anti-abortion culture warriors.

Banning abortion after 15 weeks in the name of preventing fetal pain is but a waystation on the journey that they are charting for Congress, namely to pass national legislation to ensure, in Arkes’s words, that “the protections of the law” are not “withdrawn from a whole class of human beings in the states.”

Those who value women’s rights must not forget that the pro-life movement, with Sen. Graham’s help, wants now to bring the assault on reproductive freedom let loose by Dobbs to every corner of this country.

Comments are closed.