During Sen. Lindsey Graham’s (R-SC) ultimately failed attempt to force a vote on a 20-week abortion ban on Tuesday, he made comments indicating he is aware that 20-week bans are a direct challenge to Roe v. Wade, and therefore a direct threat to legal abortion access in the United States.
“The theory of the case is not viability, medical viability, [as in] Roe v. Wade—it’s a new theory I think makes eminent sense, that the state has a compelling interest to protect an unborn child at this stage of pregnancy,” Graham said on the Senate floor.
The “new theory” Graham references is the medically discredited notion that fetuses can feel pain at 20 weeks, which is the anti-choice justification for this and other 20-week bans at the state level. “Viability,” on the other hand, is the standard that the Supreme Court has used since the Roe v. Wade decision for when states may restrict access to abortion. Viability is considered to be roughly 24 weeks’ gestational age, but the Court has said that a doctor, not legislators setting a specific cutoff date, must determine whether a fetus is viable. The Court also decided that restrictions on abortion after viability must include exceptions for rape, incest, and the life or health of the pregnant woman—but Graham’s bill, like many anti-choice bills at the state level, fails to include any health exceptions.
“Sen. Graham is entitled to his theories, but the Supreme Court decides what’s constitutional, and his bill is clearly unconstitutional,” Julianna Gonen, director of government relations at the Center for Reproductive Rights, told RH Reality Check, noting that courts have consistently struck down 20-week bans as unconstitutional and that the Supreme Court already refused to hear Arizona’s ban after it was struck down.
Twenty-week bans still appear to be an ongoing attempt by the anti-choice movement to chip away at abortion access and even overturn Roe v. Wade. Some states’ “20-week bans” actually take effect two weeks earlier in pregnancy than others, an indication that “fetal pain” is merely an excuse to limit abortion rights.
“While I cannot speculate on Sen. Graham’s motives, I can say that any law that attempts to ban abortion before 24 weeks of pregnancy is a direct affront to Roe,” Gonen said.
Graham also falsely claimed that the “Partial Birth Abortion Act” of 2003, which he co-sponsored, already applies to abortion after 24 weeks, and that his bill simply “backs it up” to 20 weeks.
“That federal law is not in fact a ban on abortion at 24 weeks,” Gonen said, but rather a ban on one abortion method that is sometimes medically necessary later in pregnancy. “He’s not backing up by four weeks some existing federal cutoff for abortion—there is no such cutoff at this time.”
Graham’s remarks came as he was requesting unanimous consent to bring up for a vote both the 20-week abortion ban and another bill, the Women’s Health Protection Act (WHPA), so that every senator could be “on record” on the issue of abortion from both sides. The WHPA is supported by a wide range of groups, including the American Congress of Obstetricians and Gynecologists, the American Civil Liberties Union, the National Council of Jewish Women, Catholics for Choice, and the Association of Reproductive Health Professionals, and has about 150 co-sponsors in the Senate and House.
But Sen. Richard Blumenthal (D-CT), sponsor of the WHPA, halted Graham’s attempt to bring both bills to a floor vote by objecting to the unanimous consent request.
Blumenthal said he thought Graham’s bill was “irresponsible and should not be before the U.S. Senate.” He added that he would nevertheless be happy to cast a vote on it, and on the WHPA—but only after both have gone through the normal committee process. Graham’s action on Tuesday, had it been successful, would have seen the Senate voting on both bills before they had been reviewed and passed out of committee.
Blumenthal said Graham’s bill “would do nothing to help women protect their health,” and that it would not achieve the goal of reducing the number of abortions in the United States, since later abortions only make up about 1.5 percent of all pregnancy terminations.
Sen. Tammy Baldwin (D-WI) said Graham’s action was a “spectacle” that was not about a serious debate on the issues, and Sen. Barbara Boxer (D-CA) said Graham was wrong to invoke the horrific crimes of rogue abortion provider Kermit Gosnell because outlawing safe and legal procedures will make more women, not fewer, turn to unsafe providers like Gosnell.
Graham also claimed that he is personally acquainted with twins who were born at 20 weeks’ gestation, but his story is unlikely to be correct. News reports have cited Amillia Taylor, born at 21 weeks and six days’ gestation, to be the youngest premature baby ever to survive, and medical evidence does not align with Graham’s claim.