The politics of abortion (Update)

Lindsay Graham introduced the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act. The bill bans abortions after 15 weeks, with rape, life, and health exceptions. It provides for prosecution of the provider but not the pregnant person and for civil actions by the pregnant person or minor parents but not the pregnant person.* It also provides that it does not preempt or limit any law imposing greater limits on abortion--in other words, it does not yield to a Red-State complete ban but does override Blue-State laws allowing Roe-level abortions until viability. The bill identifies the Commerce Clause and § 5 as the power sources, although the substantive sections do not contain an "affecting commerce" element and I am not sure a bill recognizing fetal rights (how this is framed) is congruent-and-proportional to current 14th Amendment doctrine.

[*] Federal standing law prevents a full-on HB7 private right of action, although I am surprised they did not try and force providers to defend.

I wonder about the partisan politics of this. Two months prior to an election in which polls show Democratic voters mobilized around opposition to Dobbs and the loss of reproductive freedom, extreme state laws, and the consequences of banning medical procedures, the bill places the issue in the public eye and forces a public vote on that issue. Why, the argument goes, would Senate Republicans want to increase that energy and engagement?

So what do Graham and Senate Republicans hope to get out of this?

    1) Energize the base by showing a willingness to fight to stop abortion when it makes a difference (unlike performative pre-Dobbs legislation). The bill gives a restrictive baseline--like Mississippi and more limited than under Roe--and leaves states free to legislate greater restrictions, all the way to a complete ban. It gives the anti-choice voters something to get excited about at the federal level. The questions, I guess, are whether the GOP was in danger of not having those voters and whether they will be outnumbered by enraged pro-choice voters.

    2) It provides a grand bargain on abortion, finding the middle ground that some (David French comes to mind) believe is inevitable. But the preemption clause undermines that conclusion--the bill expressly allows Idaho to ban all abortions but stops California from providing greater access. That is not a grand bargain under which the entire country falls--this is setting a federal ceiling while letting states go as low as they want.

    3) Polls shows that a good percentage of the public would set the line at 15 weeks. Graham et al believe they have a political winner in forcing Democrats to vote against a bill that resolves the abortion debate where many people would like it drawn. They also can emphasize that 15 weeks is a larger window than Europe** and count on the press to misreport it (always a good bet). Again, I think the preemption clause undermines this, for those who read the bill. But it may help create a narrative of "Democrats want extreme ranges for abortions, beyond even what those European Socialists allow."

[**] True but misleading. Some European countries stop abortions sooner than this. But it is much easier to get the procedure within 10-12 weeks than in most U.S. states--more places to go, less costly, public support for the poor, no waiting periods and other hurdles delaying and forcing multiple trips to the doctor.

    4) Check the bill title--"Late-Term Abortions Act." They are counting on the press reporting this as a ban on "late-term abortions"--which most people support but which most people think of as something like post-32 weeks (or certainly post-viability), not two months pre-viability. Mississippi did not defend its 15-week ban in Dobbs as "late-term." But the narrative "Democrats voted against stopping late-term abortions"--rather than 15 weeks--may work for the Republicans. Again, it depends on media malpractice, but that is a good bet.

    5) Distract from Donald Trump, Mar-a-Lago, etc. Graham carries Trump's water, but that is a bit too conspiratorial.

Update: Looks like # 3, with perhaps a bit of # 4). Graham wrote this thread in response to Nancy Pelosi's response to the bill. He hits the expected points: This bill is to the "left" of those in Europe; opposition means Democrats want abortion on demand; and  hoping "voters are paying attention to the radical nature of the Democrat party when it comes to abortion."