- The Washington Times - Sunday, November 3, 2013

After months of waiting and speculation about who would take the lead, Sen. Lindsey Graham — not Sen. Marco Rubio — will be the chief sponsor of a bill designed to ban abortions nationwide after 20 weeks, or the point at which some scientific evidence says fetuses may feel pain.

The move follows a growing push in conservative states to ban elective abortions earlier in pregnancies.

But a federal ban is raising constitutional questions in conservative circles, and some legal scholars have questioned where Congress would draw its powers to supersede the states and impose a national ban at a point several weeks earlier than the Supreme Court has ruled would be constitutional.

Pro-life advocates said they are confident of their legal standing and for now are just happy to get debate started in the Senate. They said they also are thrilled that Mr. Graham is their champion.

“Sen. Lindsey Graham was champing at the bit to do it sooner rather than later,” said Marjorie Dannenfelser, president of the pro-life Susan B. Anthony List, a major force behind the legislation. “There’s a point when you just have to go ahead. The timing is really now.”

The science behind fetal pain is complex and evolving and far from settled, and polling shows Americans are just as conflicted as the science.

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According to surveys, support for a ban on abortions after 20 weeks narrowly tops opposition to a ban. But Americans still generally believe abortion should be legal, particularly for women facing difficult decisions involving their health.

Mr. Graham, speaking to “Fox News Sunday,” said, “This is a debate worthy of a great democracy. When do you become you: at 20 weeks of a pregnancy? What is the proper role of the government in protecting that child?”

The two-term senator from South Carolina has been targeted by tea party conservatives and is facing at least three challengers in the Republican primary next year.

Four months ago, pro-life groups thought they had secured Mr. Rubio, the Florida Republican who is pondering a presidential bid, as their sponsor. But Mr. Rubio never made the move.

Alex Conant, a spokesman for Mr. Rubio, said the senator’s office hasn’t given up fighting for the issue but is struggling to find unity on some thorny constitutional issues.

“Our office has been working with other pro-life senators and groups since this spring on developing legislation that would ban abortions after 20 weeks and unite pro-life Republican senators,” Mr. Conant said. “We have not been able to find a consensus among pro-life supporters in the Senate on which constitutionally enumerated powers should be used to ban late-term abortions. Sen. Rubio feels very strongly on this issue, and will continue to work on legislation that we can unify people behind.”

Several news reports have pointed to Sen. Mike Lee, Utah Republican, saying he has raised questions about constitutionality.

But Mr. Lee’s spokeswoman said the senator hasn’t given any public remarks about the bill.

“Sen. Lee is reviewing the legislation and doesn’t have any public comment at this time,” Emily Bennion said.

Mr. Graham’s office didn’t respond to multiple messages from The Washington Times seeking comment about his sponsorship or about the constitutional questions.

Ms. Dannenfelser, though, dismissed the idea that a constitutional debate would sap support, saying the Commerce Clause granting Congress the power to control interstate commerce is broad enough to encompass limiting abortions.

“It comes down to a question of vote for it or don’t vote for it. I truly don’t believe that anyone would be so risk-averse that they would vote against it because of the Commerce Clause,” she said.

In the House, where legislation imposing a ban on abortions after 20 weeks already has passed, lawmakers are required to cite the specific constitutional authority of Congress.

In the case of the abortion ban, the initial constitutional authority was cited as Congress’ power over the District of Columbia, because the bill originally applied only to Washington.

But after the trial and conviction of Philadelphia abortion provider Kermitt Gosnell on charges of murder this year, House Republicans expanded their bill to a nationwide ban and updated their constitutional authority citation. The national version cites the Commerce Clause allowing the federal government to regulate interstate commerce, and the 14th Amendment’s equal protection and due process guarantees.

Ms. Dannenfelser said the Susan B. Anthony List never initially thought to ask Mr. Graham to be the chief sponsor of the bill because, “to be perfectly honest, I didn’t know that he was willing.”

“Since he was, to me, it’s ideal,” she said. “In talking through the strategy with him on this, he’s just good. He’s a very good strategist and he cares enough to use his strategic ability.”

She said she still expects Mr. Rubio to sign on to the bill and expects him and most other Republicans to support it if it is put to a floor vote.

“I have no doubt in my mind that not only he, but all of the other guys involved, will vote for the bill. There’s no question about that,” she said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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