- The Washington Times - Thursday, November 7, 2013

Facing political challengers on his right flank back home in South Carolina, Sen. Lindsey Graham introduced a bill Thursday that would ban most abortions nationwide after 20 weeks of pregnancy — putting the veteran lawmaker in the middle of a renewed national debate over late-term abortions.

The push comes despite some concerns — including from within the Republican ranks — that the proposal could be unconstitutional.

Flanked by pro-life advocates, Mr. Graham said advancements in science and technology have shown that unborn children can feel pain after about six months and that he is speaking up on their behalf by pushing the Pain Capable Unborn Child Protection Act.

“We are choosing today to speak up for all babies at 20 weeks, and trying to create legal protections under the theory that if you can feel pain, the government should protect you from being destroyed by an abortion, which I imagine would be a very painful way to die,” the South Carolina Republican said.

The two-term senator has been targeted by tea party conservatives and will have at least three challengers in the South Carolina GOP primary next year.

The legislation he rolled out Thursday carves out abortion exemptions in the case of rape or incest against a minor or to save the life of the mother.

More than 30 Republicans in the Senate have signed onto the bill, though there are some notable exceptions, including Sens. Rand Paul of Kentucky and Mike Lee of Utah, a pair of tea party favorites and self-described constitutional conservatives.

Brian Phillips, a Lee spokesman, said the freshman senator is still mulling over the potential constitutional hurdles. “That’s what he’s working on and why he’s talking to other members and outside groups,” Mr. Phillips said. Mr. Paul’s office did not respond to a phone call and email seeking comment.

The proposal, though, does have support from a couple of other tea party favorites: Sens. Ted Cruz of Texas and Marco Rubio of Florida.

“We’ll continue to work with other senators on language that addresses the constitutional issues, but he wanted to co-sponsor Graham’s legislation because he agrees with the bill’s goals,” said Alex Conant, a Rubio spokesman.

Pro-life supporters of the bill say they are confident they have legal standing, and say the Commerce Clause grants Congress the power to control interstate commerce, and is broad enough to encompass limiting abortions. And they cite the 14th Amendment’s equal protection and due process guarantees.

Mr. Graham, meanwhile, suggested Thursday that it is up to the courts, not Congress, to decide the constitutionality of the law.

“We are not the court,” he said. “We are the legislative branch of our checks-and-balances government.”

But pro-choice groups fired back, saying the Graham legislation is unconstitutional and the latest chapter in the “war on women.”

“Make no mistake, this legislation is being proposed as a next step by those who aim to overturn Roe v. Wade. It is blatantly unconstitutional, banning abortion before viability and violating women’s fundamental right to make the very personal decision whether or not to continue a pregnancy,’ said Andrea Friedman, director of reproductive health programs at the National Partnership for Women and Families.

A similar proposal passed the House in June by a vote of 228-196.

Senate Democrats said Thursday that the Graham proposal smacks of politics and that lawmakers should be focused on policies that put more people back to work and foster economic growth.

“We are here today to make one thing abundantly clear, and that is that this extreme, unconstitutional abortion ban is an absolute nonstarter,” Sen. Patty Murray, Washington Democrat, said on the Senate floor. “It’s going nowhere in the Senate and Republicans know it.”

Mr. Graham agreed that the bill likely does not have the votes to pass the Senate — at least now.

He said he is confident that a robust debate on the issue will build momentum for passage and convince lawmakers to join the fight, much like they did in previous congressional battles over the Partial-Birth Abortion Ban Act and Unborn Victims of Violence Act.

Mr. Graham also said he is not introducing the proposal because he is facing a primary challenge in the 2014 election.

“I came into the political arena pro-life and I will leave pro-life,” Mr. Graham said, adding that voters in South Carolina will decide whether he serves another term. “Did I wake up because I have a primary and say ‘Hey, let’s be pro-life?’ No.”

He said South Carolina voters will likely respond to the bill in a similar fashion to the rest of the nation. “When they understand what I am trying to do, they will say, ‘Yeah, that makes sense,’” he said. “Will it wipe away all the other criticisms? No.”

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