COLUMBIA, S.C. — A South Carolina six-week abortion ban that has cleared the Republican-controlled Legislature is now for the second time headed to the governor’s desk, whose expected signature enacting the bill into law is likely to be challenged immediately.
In a 27-19 vote, the Senate on Tuesday voted to approve House changes made to a six-week abortion ban — S. 474 — that would prohibit abortions once fetal cardiac activity is detected, typically around the sixth week of pregnancy, when most people don’t know that they’re pregnant.
The present bill includes exceptions for rape and incest no more than 12 weeks, fatal fetal anomaly and the mother’s life.
“All of you listening to me that have daughters and granddaughters, ... I want you to stop and think about the laws that you’re making for their future,” said Sen. Katrina Shealy, R-Lexington, one of five women who serve in the Senate. “If you haven’t talked to them, why don’t you ask them how they feel about having you and the state of South Carolina being in their bedrooms, at the dinner table, in the doctor’s office and in the locker room?”
The Legislature’s move, in part, serves as an effort by Republicans to put the measure back before the South Carolina Supreme Court, which in January ruled a similar ban passed in 2021 unconstitutional.
Senate Majority Leader Shane Massey said, compared to neighboring states, South Carolina has the “weakest” abortion ban, which, as a result, has attracted a large number of out-of-state travelers seeking abortions in the state.
Starting in September 2022 — a month after the state’s previous six-week ban was blocked — out-of-state visitors began to make up nearly half of South Carolina’s total monthly abortion cases, according to provisional data from the S.C. Department of Health and Environmental Control.
In February, DHEC reported that 504 South Carolina residents received an abortion, compared to 482 visitors, according to Massey. And in March, 525 S.C. residents and 433 visitors received abortions.
“The abortion landscape has changed considerably even from our last debate on the issue just last month,” Massey, R-Edgefield, said, referring to the upper chamber’s vote in April to reject a near-total abortion ban. “South Carolina has become the abortion capital of the southeast, and there’s really no other way to say that.”
Lawmakers debate abortion ban in 2nd special session
This was the second special session in less than a year to further restrict abortions, after Republicans for months had been unable to agree on how restrictive a ban should be.
Under House modifications, the bill includes several new requirements, such as requiring child support to start at conception and allowing a judge to decide if a minor can have an abortion should a parent or guardian be unavailable.
The push against the measure included all five female senators — made up of three Republicans, one Democrat and one Independent.
“This General Assembly cares more about the unborn than the living that are dying all the time,” state Sen. Sandy Senn, R-Charleston, said, referring to the opioid crises in South Carolina that she said her colleagues have done nothing about. “Please pray for these born children just as you do for the unborn.”
Although state Sen. Penry Gustafson, one of three Republican female senators, supported the Senate’s original six-week ban back in February, she opposed S. 474 as modified by the House.
“I was not going to be satisfied if the bill were changed. It’s not the same bill. It’s just something different,” Gustafson, R-Kershaw, said.
Last week, which marked the start of a special legislative session, the House, after 24 hours of debate over two days, voted 82-33 in favor of S. 474, fending off hundreds of unsuccessful tries by Democrats to amend the bill.
Of the successful House amendments, however, and perhaps the most contentious, included a requirement that an abortion require an in-person doctor visit about the implications of having an abortion before a procedure can be done.
The change sparked a lengthy exchange between Sen. Margie Mathews, D-Colleton, and Massey, who the said the amendment has been grossly misinterpreted.
“I’ve seen some interpretation that what this provision does is effectively require two in-person visits 24 hours apart, (but) that’s not what it does,” Massey said. “It does, however, require that the woman is going to have some in-person counseling to understand what it is that she’s doing, and what the consequences of that is.”
But Matthews said in the case of a rape victim, two in-person doctor visits are unavoidable and, therefore, burdensome.
“If you come in that first time (as a rape victim) and you believe that you’re pregnant, they’re going to consult with you to confirm whether or not you are in fact pregnant, and that can’t be done unless there’s a physician present to give that diagnosis,” Matthews said. “So, under this (bill), there has to be a second visit.”
Shealy on Tuesday unsuccessfully offered an amendment — the Senate rejected the proposal in a 21-25 vote — she called “a compromise” that would bump the ban up from six to 12 weeks and allow up to 20 weeks in cases of rape and incest.
Another change made by the House would subject doctors to civil liability in addition to losing their medical license.
Shealy said while women are fertile only 24 hours each month, men are fertile “100% of the time.”
“So, it’s time for men in this chamber and the ones across the hall and all across the state of South Carolina to take some ejaculation responsibility,” Shealy said.
Once signed, six-week abortion ban likely headed to court
Critics say the legislation mirrors what the South Carolina Supreme Court ruled unconstitutional in January.
Kathleen McDaniel, an attorney who represented Planned Parenthood before the state Supreme Court in its recent ruling, recently told lawmakers that while the bill has some technical differences compared to last year’s version, it maintains an element already ruled unconstitutional by the court.
“The concept of banning abortion at six weeks is exactly the same whether you add exceptions, whether you narrow down that limitation or not,” McDaniel said. “So, no matter how you slice it and dice it and try to add additional revisions, ... if the six-week ban remains the centerpiece of the bill, it will remain unconstitutional.”
Now, the court is made up of all men after Justice Kaye Hearn, the only woman on the high court, retired due to the state’s 72-year age limit and was replaced by current Justice Gary Hill.
Massey said the current bill addresses previous constitutional challenges.
“One of the things that one of the justices focused on (in striking down the former six-week ban), was a legislative finding in the 2021 legislation that specifically talked about women being able to make informed choices,” Massey said Tuesday. “And the justice ... concluded that finding was inconsistent with the rest of the bill. So in the bill that we passed a few months ago, we removed that finding such that we would not have the contradiction.”
Gustafson said that while she and her colleagues may disagree on a woman’s right to choose, debates surrounding abortion shouldn’t be so contentious.
“Certain senators stood at this well last fall and said basically if (I) don’t support a total abortion ban (I’m) going to hell,” she said. “What do you do what that?”
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