The federal abortion ban that Sen. Lindsey Graham (R–S.C.) 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 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.
