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When Did the GOP Become Pro-Choice?

Many Republicans in Congress are embracing a “federalist” approach to abortion that would condemn millions of unborn children to death.

Senator Graham Introduces The Protecting Pain-Capable Unborn Children From Late-Term Abortions Act
Sen. Lindsey Graham speaks during a news conference to announce a new bill on abortion, September 13, 2022. (Drew Angerer/Getty Images)

Election Day is less than 50 days away, and many Republicans in Washington have decided to signal that they have no interest in doing anything for babies at the federal level. What kind of message is that?

It sounds pretty pro-choice: not quite pro-abortion, but not really pro-life, either.

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Last week, South Carolina's Sen. Lindsey Graham introduced a common-sense bill, the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act. The bill would set a federal limit on late-term abortions, banning all abortions after 15 weeks of pregnancy, with exceptions for rape, incest, and the life of the mother.

This is an overwhelmingly popular bill. According to swing state polling from SBA Pro-Life America, 50 percent of Americans preferred a “Republican candidate who supports restrictions on abortion after 15 weeks” over a “Democrat candidate who supports unlimited abortion throughout pregnancy.” Just 30 percent preferred the Democrat.

And yet a broad coalition of Republicans have balked at Graham’s bill, including not just the usual suspects—the “reasonable” Republicans and the paid opposition—but also most Republican members of Congress, consultants, Twitter pundits, legal scholars, and even conservative advocacy groups. For nearly a week now, all these people and more have been up in arms protesting the 15-week bill. 

It’s hard to understand why. The 15-week bill checks all the boxes: it is morally righteous, constitutionally mandated, politically winning, Supreme Court-approved, and strategically savvy. The Republican Party has pledged to support a bill like this for the better part of four decades. Nearly every sitting Republican member of Congress has already co-sponsored this kind of bill in prior terms. In 2020, 53 Senators voted in favor of a 20-week ban with these same exceptions. Nobody said anything then.

Now, everything has changed. Conservative “policy analysts” are running to left-wing media outlets to denounce the legislation. Right-wing “legal scholars” are questioning its constitutionality. And as of Monday, fewer than half of Republicans in the House and only four (four!) Republicans in the Senate, including Graham, had formally endorsed the legislation.

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Why is everybody being so weird about this? What is going on?

Many of the objections to the bill are almost too asinine to require rebuttal. Some have claimed that the bill would override more pro-life regulations at the state level. No, it wouldn’t. The bill would allow states to be as restrictive as they like. It would simply forbid them from being so permissive that they allow babies to be killed after three and a half months of pregnancy. New York’s law would change: abortion wouldn’t be legal in the third trimester anymore. But the law in states like Texas, where legislators delivered a historic pro-life victory protecting babies with a heartbeat, wouldn’t change at all.

Others are objecting on more academic grounds. Congress, these people claim, doesn’t have the constitutional authority to legislate on abortion. “Where in the Constitution,” they beard-stroke reflexively, “is Congress granted that power?” On so many of the issues on which Congress involves itself, this is a really good question. On abortion, it’s absolutely idiotic.

The 14th Amendment declares that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And if there’s any question about who is meant to police the states on this issue, the final section of the amendment makes it explicit: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

If the 14th Amendment doesn’t give Congress the power to ban the extrajudicial killing of an entire class of people, then it doesn’t do anything at all. This isn’t some airy-fairy invented right of “substantive due process.” This is the plain meaning of the text. It says “life” explicitly. It takes some serious mental gymnastics to declare that Congress is constitutionally incapable of finding that the 14th Amendment prohibits late-term abortions.

Many right-wing pundits have argued—perhaps wishing for it to be true—that the 15-week bill undermines the Supreme Court’s decision in Dobbs, which they say sent abortion policy back to the states. But where in Justice Alito’s majority opinion does it say that? Alito is careful in every instance to note that the decision is now in the hands of “legislatures” or “the people and their elected representatives.” That includes the United States Congress. Justice Kavanaugh's concurring opinion mentions Congress explicitly. The idea that this is somehow a constitutional requirement is one of the most absurd policy memes to ever come out of Republican circles, on the level of “build your own Google” and “private companies can do whatever they want.”

It is easier to suffer these shoddy constitutional arguments from people without power, but when they come from Republican policymakers—even some of the good ones—it becomes much harder to stomach. Congressional Republicans don't operate this way on anything else. They allow Congress to coerce states on all sorts of things, but killing babies is really where they draw the line on federal involvement? If so, the current ban on partial-birth abortion would be unconstitutional. Do they want it struck down? Would they vote to repeal it? 

Again, this argument seems to have been entirely invented within the last few months. When Republicans tried to pass the 20-week version of this bill in 2020, it didn’t come up. Is there a federal role at 20 weeks but not at 15 weeks? When the Democrats tried to pass their Women’s Health Protection Act earlier this year, a “40-week bill” which would have radically changed federal law by promoting taxpayer-funded abortion until birth in all fifty states, few Republicans in Congress (if any) raised this kind of objection.

The only thing that’s changed from before is that the stakes are real now. That scares a lot of people, especially those who were merely paying lip service to the pro-life movement before. As Rich Lowry put it in National Review last week, the “Republicans experiencing a case of sudden-onset federalism on this issue are clearly motivated by political fear.”

One of the most frustrating criticisms of the 15-week bill has been the idea that it is somehow sabotaging the GOP’s chances in the 2022 campaign. The same GOP consultants who couldn’t strategize their way out of a paper bag, let alone a post-Dobbs political climate, are here to tell us that abortion is a political liability for Republicans.

Here is the reality. Abortion is going to be a major issue in this election cycle. Dobbs happened, and there is no avoiding it. This is now a prisoner’s dilemma. Republicans have two choices: they can ignore the issue and lose badly (which most of the establishment seems committed to doing), or they can counter the left’s attacks and run against the left’s own abortion extremism. If done even half-heartedly, this is a draw. If done emphatically, the polling suggests it turns into a win.

We already saw what happens when Republicans avoid the fight. In the New York 19th district special election, Marc Molinaro followed the establishment script: ignore abortion and pivot to inflation. That didn’t work out. Democrats ran on abortion and defined Molinaro as a radical, while Molinaro had no response. What happened? Voters decided he must be a radical. As Molinaro smartly explained to Newsmax, “Rather than avoiding the topic, I think we have to talk honestly about…what we believe and why we believe it and connect with people on this issue. I do think that is an important lesson.”

This is political strategy 101. When one candidate makes a popular argument about an issue, and the other candidate ignores it and cedes the ground, voters are going to tend to side with the candidate making the argument. When it’s on an issue that resonates like abortion—one that moves voters and drives turnout—this will obviously have an enormous effect on the election’s outcome.

So, the GOP has to talk about abortion. That’s the only play. The Democrats have already committed to spending tens of millions of dollars running on this issue in November. That’s why Graham’s bill is so important; it insulates Republicans and gives them the opportunity to support an easily defensible policy position. Abortion restrictions after 15 weeks, especially with the exceptions, are extraordinarily popular. Meanwhile, nearly every single Democrat is on the record supporting a 40-week bill, a position that is completely untenable with the American people.

If voters are choosing between 15 weeks with exceptions and 40 weeks without limits, we will win this debate easily.

There is only one understandable objection to the Graham bill: the idea that it doesn’t go far enough. A 15-week ban would only prevent a small percentage of abortions, so shouldn’t the pro-life movement go further and support a federal heartbeat bill?

This author is certainly sympathetic to this argument. But even this shouldn’t prevent a pro-life legislator from supporting the Graham bill. It is a moral imperative to sign on to every single bill that would save any number of unborn lives if it has a chance of success. We should push for the most aggressive thing we can get while trying to get as many babies out of the burning building as quickly as possible.

Unfortunately, as we saw with the brouhaha over the Graham bill, the GOP isn’t even on board with us on a 15-week bill yet. If the Republicans are going to commit to the ludicrous idea that there is no federal role in stopping the mass genocide of millions of human souls, then let’s just be honest: we’re now dealing with a pro-choice party. Still better than a pro-abortion party, perhaps, but certainly not inspiring to the large bloc of voters who actually care about protecting life.

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