Lindsey Graham Wants a National Abortion Ban. Here’s What He Overlooks.
But to the South Carolina Republican, it’s a human rights issue only for the fetus: “At 15 weeks, you have a developed heart and lungs. And to dismember a child at 15 weeks is a painful experience. It’s barbaric.”
You’ll notice what’s missing from his remarks: the human rights of women. And—if you want to talk about barbaric—as a Texas lawsuit makes clear, under the abortion restrictions that Texas and other states have been rushing to impose, the rights of pregnant women are being crushed. Take it from Amanda Zurawski, who testified Wednesday on Capitol Hill that her state’s laws nearly killed her.
The ban that Graham has proposed includes exceptions for cases of rape and incest (although adult victims must submit paperwork to prove they received medical treatment or counseling) and in cases where, “in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman.” There are no exceptions for major fetal abnormalities. There is no exception to preserve the pregnant woman’s health. And the bill explicitly forbids doctors from taking into account “psychological or emotional conditions.”
Physicians are left to judge what constitutes “risk of death or major injury,” and it may be unclear to them whether they have any legal path forward. For a half century, under the legal regime overturned by the Supreme Court last year, physicians whose pregnant patients were facing emergencies in our wealthy, advanced country knew that they could take medically justified actions. But we can no longer take for granted that high standard of care. Now, even when the consequences of inaction could be dangerous or deadly for the pregnant patient, physicians must consider whether their actions could invite criminal prosecution.
And there is no way for legislators to write into a law every single complication or emergency or calamity that could befall someone who is pregnant. I can’t forget a conversation I had with an anti-abortion acquaintance who felt a 15-week ban was a good compromise between supporters and opponents of abortion. I raised one problem after another that could occur after 15 weeks, and the response was not hardline. This person clearly understood these were real problems and kept saying, can’t they just write that into the law?
No. They can’t. Even doctors can’t do that. Every person, every pregnancy, is different. “While exceptions are often suggested for gestational age bans, the fact is that it’s impossible to predict every circumstance that might arise in pregnancy,” as Dr. Barbara Levy, the vice president of health policy for the American College of Obstetricians and Gynecologists, told CNN in 2019.
Consider the case of Texas. A “trigger law” banning abortion—even in cases of rape and incest—took effect in the state after the U.S. Supreme Court handed down its Dobbs ruling last year overturning Roe v. Wade. Under that trigger law, abortion is permitted in Texas only if, “in the exercise of reasonable medical judgment,” a pregnancy is deemed to be putting a woman “at risk of death” or at “a serious risk of substantial impairment of a major bodily function.”
That might seem at first look to be pretty clear-cut. But not so fast: Another abortion law—S.B. 8, passed in 2021—remains on the books. And while its ban on abortions after the point when a fetal heartbeat can be detected (roughly six weeks of gestation) has been superseded by the state’s broader ban, the status of the exceptions clause written into that law is unclear. S.B. 8 permits abortion “if a physician believes a medical emergency exists” and has documented the emergency.
Five women and two doctors are now suing to have the apparently conflicting laws blocked because ambiguity about “the meaning of the exception to Texas’s abortion bans” has created “pervasive fear and uncertainty” among medical professionals and facilities. As a result, patients who desperately need help are not getting it. “With the threat of losing their medical licenses, fines of hundreds of thousands of dollars, and up to 99 years in prison lingering over their heads, it is no wonder that doctors and hospitals are turning patients away—even patients in medical emergencies,” the lawsuit states.
The women’s stories are harrowing:
- When Anna Zargarian’s water broke at 19 weeks, her doctors said she was at high risk of hemorrhage or sepsis and her baby would not survive, but “detectible cardiac activity” meant she was denied an abortion under S.B. 8. She flew to Denver after her dire situation convinced an overbooked clinic to squeeze her in. “I’ve never felt my life matters less than it did during this situation,” she said.
- Lauren Hall learned at her 18-week anatomy scan that her fetus had anencephaly—no skull and an underdeveloped brain. Her doctor said she would have to wait to miscarry, deliver a baby who could not survive, or go to another state. She managed to find the money for an abortion in Seattle.
- After 18 months of IVF treatment to get pregnant, Amanda Zurawski began to miscarry at 17 weeks. She was at high risk of infection, but cardiac activity meant Texas doctors would not help her. Only when her temperature climbed to 103.2 degrees with a septic infection did the hospital finally agree that “she was sick enough that inducing labor would clearly not violate Texas’s abortion bans. . . . Amanda delivered, and her baby, Willow, passed away.” Multiple infections damaged her organs and one of her fallopian tubes is permanently blocked. Not only did she almost die, Zurawski told the Senate Judiciary Committee this week, “I may have been robbed of the opportunity to have children in the future.”
- Lauren Miller struggled with nausea and vomiting—hyperemesis gravidarum—and learned that one of her twins had a condition called trisomy 18 and “would likely not survive to birth.” The normal treatment would have been a “fetal reduction” giving Lauren and the other twin the best chance to avoid a health crisis. After vomiting, chills and dehydration so severe it required an ER visit and hospitalization, Lauren and her husband decided to travel to Colorado for the procedure. She was 15 weeks pregnant.
- A Texas doctor told Ashley Brandt that one of her twins had skull anomalies, “her chances of miscarriage or premature labor were high,” and if that twin kept growing, she could lose both twins. “Ashley did not want one stillborn, but she definitely did not want two,” the lawsuit says. She had a fetal reduction in Colorado but “the remainder of Ashley’s pregnancy was plagued by fear and stress.”
These women’s experiences are distinctive, yet they represent multitudes, in Texas and elsewhere, some in the news and many never publicized. The lawsuit lists dozens of terrible pregnancy complications treated by the two Houston doctors who are suing—Damla Karsan and Judy Levison—and the impossibility of writing a law that specifies what is legal or illegal in every potentially catastrophic case. “In Dr. Karsan’s experience, an emergent condition or emergency situation cannot be formulaically defined and will always depend on the patient’s unique situation,” the lawsuit says.
Disturbingly, the suit also lists instances when doctors refused to speak frankly to their patients and even left medical records fuzzy out of “fear of liability under Texas’s abortion bans.”
Graham presents himself as a voice of reason on abortion. American policy is “out of line with the rest of the civilized world,” he told CNN. “Only North Korea and China allow abortion on demand up to the moment of birth, except the Democratic party.” His proposed national 15-week ban would, he said last year, align America with the consensus that Europe has reached.
But just like pregnancy, it’s far from that simple. Different European nations have different time limits for elective abortions. And even after those time limits, there are often broad circumstances—physical, mental, emotional, practical—under which abortion continues to be available. When the time limits for elective abortion end, “abortion almost always remains legal for a much longer period on other grounds, such as broadly framed socioeconomic or health grounds, or grounds of severe or fatal fetal impairment,” Leah Hoctor, senior regional director for Europe at the Center for Reproductive Rights, wrote last fall in the Washington Post.
Denmark, for instance, permits elective abortion for 12 weeks. After that threshold, abortions are permitted for reasons well beyond medical emergencies—among them if, “on account of her youth or immaturity, the woman is for the time being incapable of giving proper care to a child,” or “it can be assumed that pregnancy, childbirth, or care of a child constitute a serious burden to the woman,” or on the basis of “housing, income and health” circumstances. This is not the same as bans after 6 weeks or 15 weeks or 20 weeks.
For conservatives, the eradication of legal abortion in the United States has long been a paramount goal, and with the Dobbs ruling last year, they seemed to be peaking in power. Now, though, abortion is backfiring politically for them, and they are at risk of appearing radical even to their own supporters. The prospect of Graham’s national ban—which polls have shown even most Republicans do not want—may aggravate their difficulties, as may the possibility of mifepristone vanishing after 23 years of use for medication abortion early in pregnancy.
But more than anything else, it is the often traumatic realities of pregnancy that will create political problems for those who have backed abortion bans and restrictions in state after state. And the issue won’t go away, as horrors like those endured by Anna Zargarian, Lauren Hall, Amanda Zurawski, Lauren Miller, and Ashley Brandt—and even worse human tragedies—continue to occur, both the ones that come to light and the many more we’ll never know about.