What You Need to Know About the Bill to Ban Abortion Nationwide
This week, Sen. Lindsey Graham (R-SC) introduced a nationwide ban on abortion. The bill—of which a substantively identical version was introduced in the House by Rep. Chris Smith (R-NJ)—is the first major abortion ban to be introduced in the Senate after the Supreme Court overturned Roe v. Wade.
Graham’s proposed national ban would prohibit abortion after 15 weeks nationwide, with only very narrow exceptions—while still allowing states to ban abortion even more strictly. It is modeled off legislation Graham has previously introduced that criminalized abortion starting at 20-weeks nationwide, which then-Majority Leader Mitch McConnell (R-KY) brought for a vote in 2018. The only Republicans who opposed that ban were Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK).
Here is what you need to know about Sen. Graham’s newest proposal for a national abortion ban.
The ban is part of an extreme agenda playing out across the country
The proposed ban is part of a far-right attack on civil rights and liberties that is playing out across the country. At the federal level, extremist lawmakers have made clear that their quest to deny such rights is not limited to abortion: As just one example, all but 10 Republicans in both the U.S. House voted against codifying the right to contraception and Sen. Joni Ernst (R-IA) blocked the measure from being even considered in the Senate.
At the same time, states are actively implementing their own criminal abortion bans and seeking new ways to limit care, with many far-right governors actively working with activists such as the Susan B. Anthony List—a group which supports banning many forms on contraception and whose president, Marjorie Dannenfelser, has called exceptions to abortion bans for rape and incest survivors “abominable.”
And while openly discussing limiting the right of their citizens to travel out-of-state, lawmakers are also threatening companies who provide abortion-related benefits. In a letter to Sidley Austin, one of the nation’s leading law firms, a group of state lawmakers warned, “Litigation is already underway to uncover the identity of those who aided or abetted these and other illegal abortions.”
The ban would put doctors in jail
Despite some extremists’ claims they do not want to “throw doctors in jail,” the bill does just that. As with Graham’s 20-week ban that was voted on in 2018, this new ban would be enforced through criminal penalties and jail time for doctors and other providers of abortion.
And while the bill does contain a subsection that states “a woman upon whom an abortion … is performed” cannot be criminalized under the bill’s provisions, the ban also does not prohibit prosecutors from charging people for their pregnancy outcomes under other criminal statutes. While any court should deny politically motivated prosecutors’ efforts to do so, the threat of criminalization still looms. Researchers have identified more than 1,300 instances of women being charged or otherwise punished for their pregnancy outcomes under various state statutes between 2006 and 2020 alone, when Roe was still law.
The ban would deny states their ability to keep abortion legal
As a federal ban, Graham’s proposal would override state regulation of abortion. This means that the proposed ban would allow states to restrict abortion more stringently—but bar states from ensuring abortion remains legal. The operation of the bill in this regard makes clear that, despite some longstanding claims, politicians on the extreme right are not satisfied with leaving the decision of whether or not abortion is legal to the states.
After Graham introduced his bill—in the face of increasing public backlash to abortion bans after Roe was overturned—some Senate Republicans tried to distance themselves from the proposal. Prominently, Minority Leader McConnell claimed the majority of his caucus wanted abortion to be a state issue—ignoring the fact that he made the decision to bring a nationwide abortion ban to the Senate floor for a vote less than five years ago.
The ban’s narrow exceptions demonstrate the cruelty underscoring the bill
The ban substitutes politics for medical judgment and invades the patient-provider relationship.
To start, the ban does not contain an exception for an expectant parent who learns that their pregnancy will never result in a live birth or that the baby will die soon after birth. In an affidavit submitted during a litigation over a state abortion ban, a doctor explained the harms that can result when a patient is unable to decide whether or not to proceed or how to end such a pregnancy:
[T]his particular patient was forced to go through a painful, hours-long labor to deliver a nonviable fetus, despite her wishes and best medical advice. She was screaming—not from pain, but from the emotional trauma she was experiencing.
Furthermore, in regard to the health of a patient, the ban only contains an exception when “necessary to save the life of a pregnant woman” or “substantial and irreversible physical impairment of a major bodily function.” This type of vague wording, which appears in many state bans, has led to massive confusion on the ground, and reports quickly began circulating of medical providers delaying care to women experiencing miscarriages or ectopic pregnancies. A person experiencing even the most severe mental health crisis would not qualify for an exception; any threat must be physical.
In addition, the ban’s exceptions for rape and incest risk retraumatizing individuals seeking care. Adult rape survivors, for example, are forced to prove that they should qualify for an exception to the ban by either obtaining counseling or receiving “medical treatment for the rape or injury related to the rape.” The survivor could also qualify by reporting the rape to law enforcement or Department of Defense victim assistance personnel. Documentation proving one of these conditions have been met must be included in the survivor’s medical file. Any such requirements indicate mistrust of women and significantly burden a person’s ability to access care.
Scarlet Letters: Getting the History of Abortion and Contraception Right
All people deserve freedom and bodily autonomy—including access to abortion
After the Supreme Court overturned Roe and denied the right to an abortion, the dramatic affronts to human rights have been swift. A 10-year-old rape survivor was forced to travel across state lines to get an abortion and her doctor was then investigated. Texas has sued the federal government, arguing they shouldn’t have to provide life-saving treatment to patients in crisis when that treatment is abortion.
And while events such as these underscore the cruelty of far-right politicians, every denial of abortion care should be considered unacceptable. Abortion bans are unequivocally harmful. They are opposed by the medical community; force women and other people who can become pregnant to give birth in violation of their human rights; and deprive people of the freedom to shape their own families and futures. Research has made clear that when a woman is denied an abortion, she and her family are much more likely to suffer financially and not be able to cover basic living expenses when compared to those who are able to access care. Graham’s bill would dramatically increase the severity and frequency of these harms.
Far from putting more limits on abortion, Congress must work to check and correct the Supreme Court’s decision to overturn Roe. In order to do so, it will be essential to pass legislation that will secure the right to an abortion nationwide, such as the Women’s Health Protection Act (WHPA) and the Equal Access to Abortion Coverage in Health Insurance (EACH) Act. The ability to decide whether or not to have a child should be a basic freedom for all people—and federal lawmakers should act to ensure that promise becomes a reality.
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Senior Director, Women’s Initiative