life after roe

Lindsey Graham Clears a Path for Republicans to Retreat on Abortion

Lindsey Graham offers his party a less extremist rallying point. Photo: Kevin Dietsch/Getty Images

During most of the era in which the Supreme Court generally blocked pre-viability abortion bans, the Republican Party followed a dual-track strategy. They quietly espoused the most extreme positions available (e.g., a constitutional amendment banning abortion everywhere) when pressed by the anti-abortion activists who formed an increasingly powerful segment of the party’s base, but they focused almost exclusively on very narrow ground when trying to make abortion a campaign issue (promoting bans on late-term abortions, which are both rare and unpopular). While this dishonest tactic had its critics in hard-core anti-abortion circles, it was tolerated by the general public because it was all academic as long as Roe v. Wade and Casey v. Planned Parenthood were the reigning federal constitutional precedents.

Once Dobbs swept these precedents away, Republicans had to decide which track to pursue. The rush by Republican state lawmakers to go hog wild with extreme bans amid the Dobbs decision (with 12 states enacting total or near-total bans and three others trying to overcome court orders preventing such laws) represented the first and most activist-satisfying option. But now that the backlash to Dobbs is threatening to thwart a much-anticipated Republican midterm victory, a retreat from abortion extremism into a new phase of cynical gradualism appears to be fully underway. It’s evident in the repositioning of Republican candidates in battleground states, such as Arizona senate candidate Blake Masters.

And now veteran Republican cynic Lindsey Graham is sounding the retreat for the party nationally. On Tuesday, he introduced legislation that would ban abortions after 15 weeks with exceptions for rape, incest, and the life of the mother, down from the 20-week threshold in previously bills he introduced. “Graham’s bill is designed to present Republicans as being more mainstream on abortion by pushing a partial ban over either a full ban either a full ban or what they characterize as Democrats’ ‘abortion on-demand’ position,” as Axios reports.

Graham’s shift is designed to make the tactical retreat more palatable to Republicans who would prefer total or near-total bans. The rhetorical packaging of the proposal as designed to stop “late-term abortions” is clever, if also cynical, since the term used to be applied to post-viability abortions occurring after about 24 weeks of pregnancy. At the same time, a 15-week ban — the standard adopted, though without exceptions, in the Mississippi law that led to Dobbs — would leave 93 percent of abortions legal. That’s a feature for poll-savvy Republicans candidates but a bug to those who believe every abortion is murder.

It will be interesting to see if other Republicans and anti-abortion activists line up behind Graham. For one thing, backing any national abortion ban requires abandoning the ancient fable that Republicans believe policy in this area should be set by the states, not the federal government (clearly that was just agitprop aimed at Roe). But more important, a lot of Republicans very recently supported more extreme federal bans, ranging from the Life at Conception Act, which would have established fetal personhood and banned all abortions, to a six-week ban Graham’s colleague Joni Ernst floated after the Dobbs decision was leaked this spring.

If Graham’s gambit does provide a rallying point (and a defensive crouch) for Republicans without alienating anti-abortion activists, that will mean the latter are convinced the former will go on the offensive once the midterms are over, particularly if they control Congress. To be clear, even in that eventuality, Democrats will be able to block a national abortion ban as long as they control 41 Senate seats to maintain a filibuster or the White House. But if Republicans gain a governing trifecta after 2024, the internal debate among Republicans will likely revolve around demands that they kill the filibuster to make a national ban possible.

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Graham Clears a Path for Republicans to Retreat on Abortion