On Tuesday, Republican Sen. Lindsey Graham unveiled a bill that would impose a federal ban on abortion at 15 weeks of pregnancy with a few very narrow exceptions. The senator, reversing his prior position that abortion should be left to the states, now seeks to override blue states’ more liberal laws by establishing a nationwide cutoff. If enacted, Graham’s bill would criminalize abortion at the exact moment in pregnancy when dangerous fetal anomalies and maternal health problems come to light. It would force many patients with high-risk pregnancies and severe fetal defects to flee the United States in search of legal termination. It would condemn countless sexual assault victims, including children, to bear their rapist’s child. In short, Graham’s measure would spread the tragic, potentially deadly consequences of red state abortion bans to the entire country.
Republicans have sought to cast a 15-week limit as the moderate alternative to an absolute federal prohibition, though it would leave stricter state-level bans in place. It would also federalize some of the most extreme and unpopular aspects of these existing bans. Like those laws, the Graham bill allows abortions only when “necessary to save the life of a pregnant woman,” rejecting a broader exception for maternal health. It includes no exception for fetal anomalies, no matter how grave.
Unfortunately, many genetic and physical defects can only be detected after the 15th week of pregnancy. As The 19th reported in August, the earliest point when doctors can detect anomalies is between 15 and 22 weeks, when scans show fetal organ structures. Certain abnormalities detected at this stage, like Trisomy 18 and anencephaly, render fetuses “incompatible with life,” meaning they will die during birth or shortly thereafter. At most, if carried to term, these children will live just for hours or days in immense pain. And continuing the pregnancy often puts the patient at heightened risk of medical complications.
The lack of an exception for fetal anomalies in Graham’s bill is intentional. For years, the anti-abortion movement has sought to outlaw abortions due to fetal “disability.” Before the Supreme Court overturned Roe v. Wade, at least nine states had passed these bans. Three states also gagged doctors from even raising the possibility of termination with patients after diagnosing fetal abnormalities.
These bans are largely irrelevant now that most of those states have passed laws outlawing abortion across the board. But conservative activists are fighting to ensure that federal legislation includes no carve-out for abnormalities. The anti-abortion Lozier Institute rejects the very concept of an anomaly that’s “incompatible with life,” arguing that patients should be forced to give birth if there’s a possibility that the child might live for minutes or hours. The institute argues that patients must undergo induced labor or a C-section—both of which are exponentially more dangerous than an abortion—so “a grieving family” can “show love and say good-bye.”
CNN’s Elizabeth Cohen and Danielle Herman recently reported a devastating story that illustrates the inhumane ramifications of the Graham approach. They profiled Kailee DeSpain, a Texas woman forced out of state to terminate her pregnancy. DeSpain and her husband desperately wanted to have a child. After suffering three miscarriages, they were thrilled to learn that a seemingly healthy boy was on the way. But in the second trimester, the couple discovered that the fetus had a lethal anomaly called triploidy. This genetic disorder causes serious defects in the fetus’ heart, lungs, brain, and kidney, ensuring (at best) a brief, painful life outside the womb. Triploidy can also kill the patient in the third trimester.
Because of Texas’ draconian abortion ban, however, DeSpain could not terminate immediately. Instead, she drove ten hours to New Mexico to get the procedure at 19 weeks. If Graham’s bill becomes law, patients in her situation cannot flee the state—they will have to flee the country.
Formerly a “quintessential pro-life Texan,” DeSpain now vocally opposes the “heartbeat bill” that forced her to New Mexico for crucial health care. “I had to leave my baby with an out-of-state funeral home and have his ashes shipped home,” DeSpain wrote. “I’m still so angry and hurt about it that I can hardly see straight.” She added: “It’s hard for me to wrap my head around the thought process of lawmakers that would rather a full-term baby suffocate to death than allow a mother to make a decision that spares her child that pain.”
Although triploidy can kill a patient, Texas doctors told DeSpain that they could not terminate until her death was “imminent.” This impediment reveals another flaw in Graham’s proposal: Like Texas’ heartbeat bill, its exception for “the mother’s life” is incredibly narrow. If Graham’s bill were to become law, abortion after 15 weeks would only be permissible when it’s “necessary to save the life of a pregnant woman” who is “endangered” by “a physical disorder, physical illness, or physical injury.”
When, exactly, does a complication become so severe that termination is “necessary” to save the patient’s life? That’s up to the doctor’s “reasonable medical judgment.” If prosecutors disagree with their decision, they can bring federal felony charges. If the doctor fails to persuade a jury of their proper “judgment,” they face five years in prison.
In the real world, second trimester complications are far too complex to fit neatly into the two categories—fatal and survivable—laid out in Graham’s bill. Many women, for example, experience premature rupture of the amniotic sac before viability. This condition can lead to septic infection, which in turn can lead to lethal organ failure. But when, exactly, could doctors legally terminate under Graham’s bill? How sick must a patient be? As one provider wondered: “Will I have to wait until she gets a fever, so I can check off that box, that she’s in danger? Is that sufficient or will it require her heart rate to go up or her blood pressure to go down? Will she have to wait until she’s unstable to have this option offered to her? At what point, exactly, will I be risking jail for helping my patient through this, unharmed?”
This blurry line has already inflicted agony on patients in Texas and other red states. Hospitals fearing prosecution have waited until patients are actively dying before providing abortions. Doctors can sometimes detect a fetal heartbeat even after the pregnancy has failed, triggering the criminal ban. Their hospital ethics committees may advise them to hold off while the patient continued deteriorating, waiting to terminate until there’s proof that she’s approaching death. There’s also the separate issue of pregnant women who have a condition requiring treatment that could imperil the fetus, like chemotherapy. As the New York Times noted, the standard of care is an abortion before chemo, but that’s now criminalized. Texas doctors are thus delaying cancer treatment until a patient gets so sick that an abortion is demonstrably necessary to save her life.
Then there is the other ostensible exception in Graham’s bill: a carve-out for rape and incest. The anti-abortion movement has long opposed this exception; it insists that “children conceived in rape” deserve to live, and that women will lie about being raped to circumvent a ban.
Graham catered to these reservations by compelling patients to overcome substantial obstacles. An adult victim of rape must obtain counseling or medical treatment from a government-licensed facility then wait 48 hours. Before assisting a child victim, providers must report their rape to a child welfare or law enforcement agency. Even then, in all circumstances, they must use a method that “provides the best opportunity for the unborn child to survive.” This language indicates that, at least in the second trimester, doctors must induce labor rather than performing a D&E, an extremely safe procedure used to remove a pregnancy. D&E is far safer than induced labor, so Graham’s bill ensures that some rape victims will experience totally unnecessary and possibly life-threatening medical complications.
It’s easy to see the motivation behind this proposal: Americans are, on average, more favorable to restrictions in the second trimester, so a 15-week ban sounds more politically feasible—and maybe even popular. Fewer than 5 percent of abortions occur at this stage, so the bill would have no impact on a majority of patients. Yet, perversely, Graham’s legislation disproportionately affects those in the most dire circumstances, when a second-trimester abortion may spare them severe and excruciating health crises. For now, these patients can still flee to blue states for urgent medical care if these abortions are banned in their home states. If Graham and Republican congressional candidates who support his bill have their way, those who cannot afford to travel internationally will have nowhere left to escape.