Lindsey Graham declares war on science -- and the Constitution: What his 20-week abortion ban is really all about

The GOP presidential contender is itching for a fight on how to ban abortion pre-viability

Published June 11, 2015 7:00PM (EDT)

  (Jeff Malet,
(Jeff Malet,

Lindsey Graham finally made good on his promise to reintroduce a measure to ban abortion at 20 weeks, announcing Thursday that he would "insist" on a debate this session. The Republican presidential contender's Pain-Capable Unborn Child Protection Act is a companion bill to the one House Republicans passed earlier this year after a brief derailment over optics surrounding its narrowly defined exceptions for rape and incest.

The version introduced by Graham in 2013 contained the same provision -- a requirement that rape victims report their assault to the police in order to access care -- that caused House Republicans to break on the measure back in January. While debate about how to move forward erupted among his colleagues, Graham warned that his measure would likely be subject to similar scrutiny.

“I’m going to need your help to find a way out of this definitional problem with rape,” Graham said during the March for Life. ”We need to find a consensus position on the rape exception. The rape exception will be part of the bill. We just need to find a way definitionally to not get us into a spot where we’re debating what legitimate is. That’s not the cause. We’re not here debating legitimate rape. We’re talking about saving babies at 20 weeks.”

His "way out of this definitional problem with rape" mirrors the House's revision. Instead of the mandatory reporting provision, Graham's measure requires victims to seek mandatory counseling -- a change that amounts to a backdoor waiting period. (The text of the updated version of the bill has not been posted, but a call to Graham's office confirmed that the language about reporting to law enforcement has been changed.)

Like the House measure and state bans on abortion at 20 weeks, it cuts off access to the procedure pre-viability as a direct challenge to Roe v. Wade. And last month, a federal court struck down Idaho's 20-week ban for placing an "undue burden" on women seeking the procedure. (Imani Gandy, senior legal analyst at RH Reality Check, also has a comprehensive piece that breaks down the constitutional questions related to these laws.)

Another common element: Like identical measures introduced elsewhere, Graham's bill uses inaccuracies about fetal pain as its political centerpiece.

"Science and technology have advanced tremendously since 1973," Graham said in a statement. "We now know that an unborn child at the twentieth week of pregnancy can feel pain. In fact, anesthesia is administered directly to unborn children in second trimester fetal surgery. Given these facts and my continued strong support for life, I believe there is a compelling interest in protecting these unborn children who are among the most vulnerable in our society."

The "pain-capable" talking point has been disputed by nearly every major medical association, including the American Medical Association and the British Royal College of Obstetricians and Gynecologists, and smaller studies from researchers at Harvard University, University College London and other institutions.

And here's the conclusion from the Journal of the American Medical Association's systematic multidisciplinary review of available evidence released in 2005 (emphasis mine):

Evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimesterLittle or no evidence addresses the effectiveness of direct fetal anesthetic or analgesic techniques. Similarly, limited or no data exist on the safety of such techniques for pregnant women in the context of abortion. Anesthetic techniques currently used during fetal surgery are not directly applicable to abortion procedures.

And the very doctors cited by Republicans to give cover to these pre-viability bans have spoken out against having their research misrepresented for political purposes. Dr. Nicholas Fisk, a senior maternal-fetal medicine specialist whose work is often named by supporters of 20 week bans, told the New York Times last year that neurological research indicates pain "is not possible at all before 24 weeks."

Beyond being grounded in pseudoscience and on a collision course with the Constitution, bans on abortion at 20 weeks deny people access to vital reproductive healthcare. This is an essential point that can sometimes get lost while peeling away layers of bogus science and contending with narrow exceptions. As I've written before, abortions at this stage in a pregnancy are rare, only accounting for 1.4 of abortions performed each year, but are a necessary form of care.

And as a proliferation of state restrictions put the procedure out of reach for millions of women, providers say they will likely see more patients terminating at 20 weeks. And as Dr. Anne Davis, a New York-based OBGYN told me back in 2013 when Graham first introduced the bill, no amount of access to abortion earlier in pregnancy will eliminate the need for the procedure at 20 weeks.

“A patient of mine — already a mother to a young child, really happy about the pregnancy, husband is really happy about the pregnancy — went in for her first ultrasound and was told everything was fine.” But when the patient came back at 18 weeks for a follow-up, Davis said that her doctors found that the fetus had a severe heart condition that would require multiple operations to fix and would lead to a lifetime of chronic health problems. After another visit at 21 weeks revealed that the condition had impacted the development of other organs, the couple decided to terminate the pregnancy.

“You cannot see this stuff in the first trimester. A woman could be in there every day up until 18 weeks getting ultrasounds and a doctor still wouldn’t be able to catch these issues any earlier,” Davis explained. These are issues Graham seems disinclined to address, but he is still gunning for a debate. "Why do we want to let this happen five months into the pregnancy?" he said Thursday. "I am dying for that debate. I'm going to quite frankly insist that we have that debate."

By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at

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20 Week Abortion Bans 2016 2016 Elections Abortion Lindsey Graham Reproductive Health Reproductive Rights