It comes just over 1 month since the US Supreme Court overturned Roe v Wade.
A South Carolina bill is set to limit almost eliminate all abortion rights in the state, including travelling interstate for abortions.
Proposed by three Republican state Senators on 28 June, the bill will only allow abortions for rape, incest, or where the mother’s life is in danger. This comes one month after the Supreme Court of the United States overturned Roe v Wade.
Under current South Carolinian law, and in accordance with the ruling in Roe, abortions in the first and second trimester are lawful, but abortions in the third trimester are only allowed if necessary “to preserve the life or health of the woman.” This follows the viability test, which only allows for unrestricted abortions if the foetus is not viable, with viability set at 24 weeks.
However, with the Supreme Court overturning Roe by a bare majority in Dobbs v Jackson Women’s Health Organisation, the right to have an abortion is no longer enshrined in the ‘due process clause’ of the 14th Amendment to the United States Constitution, and the responsibility for abortion laws was given to state governments instead.
As a result, the South Carolina bill, S. 1373, also known as the ‘Equal Protection at Conception - No Exceptions - Act,’ will place strict requirements on the right to have an abortion. Section 44-41-830(A) imposes a sentence of up to 25 years for carrying out an abortion.
There is only one exception to the ban on abortion, which is found in Section 44-41-840(A)(1), and that is to preserve the life of the mother. The doctor cannot take the mental or emotional health of the woman into consideration, and cannot justify an abortion by claiming that the mother would attempt to commit suicide if she did not have an abortion.
It’s also prohibited by Section 44-41-960(C) to bring a civil action, such as suing, against a woman who has an abortion because of “rape, criminal sexual conduct, or incest.”
In addition, Section 44-41-860 will prohibit providing information that is “reasonably likely” to be used to acquire an abortion. This ban includes providing information over the phone, on a website, or giving a referral to an doctor who will carry out an abortion. This will be considered as “aiding and abetting,” and carries the same sentence as actually carrying out an abortion.
The Washington Post has suggested that this could be a violation of the 1st Amendment, which protects the right to freedom of speech and expression, while law professor Eric Goldman argued that the 1st Amendment could be used to protect web service providers that platform websites providing abortion advice.
Section 44-41-880 of the proposed amendment would impose a sentence of up to 20 years on people who “recruit, harbor, or transport of pregnant minor” to another state to access abortion services. Members of the majority judgment in Dobbs, especially Kavanaugh J, cautioned against using Dobbs’ overturning of Roe as the basis for removing the right to travel interstate for an abortion, though Thomas J, in his concurring judgment, took a much broader approach to what could be overturned as a result of Dobbs.
The language of the new bill also signals a break with Roe and other states’ abortion legislation.
One argument made by the State of Texas in Roe was that the 14th Amendment, which protects the life and liberty of all persons, applied to foetuses. At the same time, it was put to forward that governments have an interest in protecting unborn life. However, in Roe the Supreme Court decided that the definition of ‘person’ in the 14th Amendment “does not include the unborn.”
Abortion legislation began to reflect this decision. For example, when the Reproductive Health Act (2019) was passed by New York to amend the State’s abortion laws, Section 299-BB used the phrase “fetal viability.” This is in line with the ruling at foetuses aren’t people, at least for the purposes of the 14th Amendment.
In contrast, the South Carolinian bill has preferred to use the term ‘unborn child,’ which is more reflective of the stance taken by the State of Texas in Roe. Section 44-41-820(8) defines ‘unborn child’ as “an individual human being from fertilization until birth.” Subsection (5) expands on that when it defines pregnancy as the “female reproductive condition of having a living, unborn child in her uterus.”
However, the bill has retained some of the importance placed on privacy in Roe. Under Section 44-41-850, if a medical procedure “results in the accidental or unintentional death of the unborn child,” subsection (E)(3) states that “no identifying information” of the woman are to be recorded in the documentation of the death, although Section 44-41-850 does require that the medical information of the foetus, the woman’s “marital status” and “obstetrical history, including the dates of any abortions,” among other things, are recorded.
However, South Carolina is not the first state to restrict abortion rights in the aftermath of Roe being overturned.
The United States Court of Appeals for the 11th Circuit ruled in SisterSong v Kemp that a 2019 Georgia law banning most abortions after 6 weeks came back into effect following the ruling in Dobbs.
The threshold in the Living Infants Fairness and Equality (LIFE) Act (2019) of Georgia was set as six weeks because that is roughly when the heartbeat can be detected. As this is earlier than the viability threshold imposed by Roe, the SisterSong Women of Color Reproductive Justice Collective had brought a case in 2019 against Governor Brian Kemp. In that case, the District Court relied on Planned Parenthood v Casey to find the Georgian law to be invalid, as it met the test from Casey that if “a large fraction” of abortions would be illegal under the state law, but legal under Roe, the state law is invalid.
However, with both Roe and Casey being overturned by Dobbs, the Court of Appeals found that the law was valid again. This is similar to the process in Australia for inconsistent laws, where if a Commonwealth and State law are inconsistent, the Commonwealth law triumphs, but the State law continues in force once the Commonwealth law is repealed, as in Butler v Attorney-General (Vic) (1961).
Like the South Carolinian bill, the Georgian legislation considers foetuses to be legal human beings. The definition of a ‘natural person’ in Georgia has now been expanded to include “any human being including an unborn child,” while an ‘unborn child’ is defined as “a member of the species of Homo sapiens at any stage of development who is carried in the womb.”
At the time of writing, the South Carolinian bill is before the state’s Senate Committee on Medical Affairs.
Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy. Sign up to our new free newsletter to catch up on all our original reporting you may have missed & to read the latest from the editor - click here. Help support unbiased journalism & keep us independent: donate just $4 a month on Patreon & receive exclusive benefits. Want to inform others? Share the link to this story on social media & with your family & friends using the buttons below.
Sources:
Butler v Attorney-General (Vic) (1961) 106 CLR 268.
Dobbs v. Jackson Women’s Health Organisation, No. 19-1392.
Equal Protection at Conception - No Exceptions - Act, SC S. 1373 (2022).
Living Infants Fairness and Equality (LIFE) Act, 2019 Ga. Laws Act 234.
Planned Parenthood of Southeastern Pennsylvania v Casey, 505 U.S. 833 (1992).
Roe v Wade, 410 U.S. 113 (1973).
SisterSong Women of Color Reprod. Justic Collective v Kemp, 11th Cir, 20-13024 (2022).
SisterSong Women of Color Reprod. Justic Collective v Kemp, 410 F.Supp. 3d 1327 (N.D. Ga. 2019).
South Carolina Code 44-1 SC Code Ann (1976).
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