The federal abortion ban that Sen. Lindsey Graham (R–SC) proposed yesterday is moderate compared to state laws that have been enacted or taken effect since the Supreme Court overturned Roe v. Wade in June. But it is based on an audacious claim of congressional authority to regulate abortion that obliterates the constitutional distinction between state and federal powers. If successful, Graham’s reasoning would renationalize a controversy that Roe‘s opponents have long argued should be settled state by state.
Graham’s bill, which has provoked more dismay than enthusiasm among his Republican colleagues, would make it a federal felony, punishable by up to five years in prison, to perform an abortion at 15 weeks of gestation or later. Its very name, the Protecting Pain-Capable Unborn Children From Late-Term Abortions Act, is contentious. Graham controversially argues that “an unborn child is capable of experiencing pain at least by 15 weeks of gestational age,” and he arbitrarily defines abortions at that point, early in the second trimester, as “late-term.” But in practical terms, a 15-week ban is far milder than the restrictions that many states have imposed or begun to enforce in recent months.
In 2019, according to data collected by the Centers for Disease Control and Prevention (CDC), just 8 percent of US abortions were performed after 13 weeks of gestation. By contrast, bans that apply after fetal cardiac activity can be detected—which happens around six weeks, before many women even realize they are typically pregnant—cover a large majority of abortions. The CDC reports that 57 percent of US abortions were performed after six weeks in 2019. A substantial share of the rest would also have been covered by “heartbeat” laws. Some state bans go even further, covering nearly all abortions at any point after conception.
Graham’s bill would permit abortion after the 15-week cutoff when a doctor deems it necessary to “save the life of a pregnant woman” or in cases involving rape or incest. While the latter two exceptions are widely supported, even by people who describe themselves as “pro-life,” many anti-abortion and politicians opposed them. In July, the Poynter Institute reported that 15 of 22 states with “new or forthcoming limits on abortion” did not make exceptions for rape or incest.
Notwithstanding these relatively moderate elements, Graham’s bill would establish a new precedent for national restrictions on the timing of abortion. Activists hope to build on that precedent with progressively stricter limits that would apply even in states where most legislators and voters oppose them.
That approach has generated a backlash not only from pro-choice Democrats but from pro-life Republicans. To some extent, those Republicans are worried about the political cost of broaching this issue less than two months before the midterm elections. But several also have implied that national abortion restrictions are contrary to the principles of federalism.
“I don’t think there’s an appetite for a national platform here,” Sen. Shelley Moore Capito (R–W.Va.) told Politico yesterday, when West Virginia legislators approved a bill that would ban nearly all abortions. “My state, today, is working on this. I’m not sure what [Graham is] thinking here. But I don’t think there will be a rallying around that concept.”
Senate Minority Leader Mitch McConnell (R–Ky.) likewise said most of his Republican colleagues “prefer this be handled at the state level.” Those Republicans seem to include Sen. John Cornyn (R–Texas), who said “there’s obviously a split of opinion in terms of whether abortion law should be decided by the states.” He added that “my preference would be for those decisions to be made on a state-by-state basis.”
On the face of it, that “preference” is mandatory under the Constitution, which does not give Congress the authority to regulate abortion or any other medical practice. The states, by contrast, retain a broad “police power” that, in the absence of Roecan be used to restrict or prohibit abortion.
Graham claims his bill is authorized by the 14th Amendment’s guarantees of due process and equal protection. Those guarantees apply to “any person,” which in Graham’s view includes fetuses (or, as he prefers, “unborn children”). Although some abortion opponents have long favored that interpretation, the Supreme Court explicitly rejected it in Roe and has yet to revisit the issue.
In addition to the 14th Amendment, Graham cites the federal government’s power to regulate interstate commerce, “as interpreted by the Supreme Court.” Since the Court has stretched that power to nearly accommodate anything Congress wants to do, that argument looks more promising. But even the super-elastic Commerce Clause invented by the Court’s precedents may not be malleable enough to cover a nationwide ban on abortion after 14 weeks of gestation.
The 2003 Partial-Birth Abortion Ban Act—which, unlike Graham’s bill, restricts methods rather than timing—notionally applies to abortions “in or affecting interstate or foreign commerce.” As Independence Institute scholar David Kopel and University of Tennessee law professor Glenn Reynolds have noted, that language is baffling “to any person not familiar with the Commerce Clause sophistries of twentieth century jurisprudence,” since “it is not really possible to perform an abortion ‘ in or affecting interstate or foreign commerce'” unless “a physician is operating a mobile abortion clinic on the Metroliner.”
Those sophistries were epitomized by a 2005 decision in which the Supreme Court said the Commerce Clause was broad enough to encompass state-authorized medical marijuana that was never sold and never crossed state lines or even left the grower’s property. “If Congress can regulate this under the Commerce Clause,” Justice Clarence Thomas warned in his dissent, “then he can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”
When the Supreme Court upheld the Partial-Birth Abortion Ban Act as consistent with Roe in 2007, it did not address the law’s Commerce Clause rationale. In his concurring opinion, Thomas noted that “whether the Act constitutes a legal exercise of Congress’ power under the Commerce Clause is not before the Court.”
Unfortunately for them, Democrats are in no position to argue that abortion legislation exceeds the federal government’s enumerated powers. They not only rely on an expansive understanding of the Commerce Clause to justify much of their agenda; they have explicitly cited the Commerce Clause as a license for Congress to override state decisions regarding abortion.
The Women’s Health Protection Act of 2021, which the House passed along party lines last year, would have established “a statutory right” to “provide abortion services,” prohibiting a wide range of state restrictions. By way of constitutional justification, it averred that “abortion substantial restrictions significantly affect interstate commerce in numerous ways,” citing, among other things, the interstate purchase of equipment and drugs used to terminate pregnancies. A similar bill that the Senate considered last May did not even bother to explain its constitutional basis.
Republican members of Congress typically claim to be more concerned about constitutional limits on their powers. But as the Partial-Birth Abortion Ban Act and Graham’s bill show, they are often willing to sacrifice their avowed principles to advance the policies they favor.
This cavalier attitude is shortsighted as well as unprincipled. If Congress can force states to allow abortion, it can also prevent them from allowing it. Conversely, if Congress can restrict abortion under the Commerce Clause, it can also establish a statutory right that precludes state regulation. That position would make abortion policy throughout the country contingent on the vicissitudes of federal elections. Instead of a diversity of policies based on a diversity of opinions in a vast nation of 50 states and 332 million people, we would get just one, always subject to change depending on who happened to be in power.
The late Justice Antonin Scalia complained that Roe “destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.” The compromise that Scalia envisioned—letting states go their own way on abortion—is today threatened by maximalists on both sides of the issue.