SC abortion bill returns to House after Senate further restricts six-week ban

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Published: Sep. 9, 2022 at 8:35 PM EDT
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COLUMBIA, S.C. (WIS) - A push to totally ban abortion in South Carolina, or come close to it, is likely over for now.

But tighter restrictions on the procedure could soon still be imposed after the state Senate passed a bill Thursday to further limit South Carolina’s current six-week ban.

Senators began their two-day, special-session debate, which latest around 20 hours, with legislation before them to nearly ban abortion. But as they discussed amendments to the bill, especially under what circumstances abortions would still be allowed, it became clear the near ban was not going to advance.

While there were enough votes in the Republican-dominated Senate to pass it, they lacked the support to clear a higher vote threshold to overcome a filibuster of the restrictive bill led by Republican Tom Davis of Beaufort County, which was backed by Democrats and all three of the Senate’s Republican women.

“The Republican women of this Senate stood up for the women of South Carolina,” Senate Minority Leader Brad Hutto, D – Orangeburg, said. “It was the Republican men who let them down.”

What Senate Republicans ultimately passed in a 27-16 vote is what they say is a shored-up version of the state’s current law, the “Fetal Heartbeat Law,” which passed in 2021 and bans most abortions after around six weeks. Opponents argue the six-week ban is about a total ban in effect, as most women don’t know they are pregnant at six weeks.

The current law allows abortions for longer periods of time under limited circumstances: when the mother’s life or health are at risk, when the mother is a victim of rape or incest, or in cases of fatal fetal anomalies, when a doctor determines the fetus would not be able to survive outside the womb.

The Senate-approved bill drops the period of time when the exception for rape and incest is allowed from 20 weeks to through the first trimester, around 12 or 13 weeks.

“There were a number of us who thought, look, we should give exceptions for rape and incest, but five months is too long,” Senate Majority Leader Shane Massey, R – Edgefield, said.

The current law requires allegations of rape and incest be reported to law enforcement when abortions are performed under those circumstances within 24 hours of the procedure. The Senate bill adds a new requirement that a DNA sample of the aborted fetus be taken by a physician and sent to law enforcement to be preserved as evidence within 90 days of the abortion.

In cases involving fatal fetal anomalies, it increases the number of doctors who have to sign off on the abortion, confirming the fetus could not survive outside the womb, from one to two.

“There may be some spin that, ‘Well, it’s just the same thing we already had.’ It’s not. It’s worse. It’s worse in many regards, and why? Why did we need to do this?” Hutto said.

The U.S. Supreme Court’s overturn of Roe v. Wade in late June opened the door for states to decide the issue of abortion and its legality within their own borders.

Massey said the Senate bill still accomplishes Republicans’ goal of making South Carolina’s current law more aggressive.

“I’ve got to readily admit that this is not everything I wanted. But I do think that it is something the pro-life community ought to be proud of,” he told reporters after the final vote Thursday night. “We’ve advanced the ball. We did save lives tonight, and I think that’s important.”

The six-week ban had been blocked in federal court for more than a year after Gov. Henry McMaster signed it into law in February 2021, but it started being enforced shortly after the U.S. Supreme Court’s decision to overturn Roe in June.

But weeks later, the South Carolina Supreme Court temporarily halted its enforcement again amid a new legal challenge brought by abortion providers in state court.

In the bill they passed, Senate Republicans adjusted the language in the current law that the court referenced in issuing that temporary injunction.

However, the larger legal challenge still remains to be settled, as abortion providers claim the law — and therefore the Senate bill — violates state constitutional rights to equal protection and privacy.

“If what’s going on in my vagina is not an unreasonable invasion of privacy for this legislature to get involved in, I don’t know what is,” Sen. Sandy Senn, R – Charleston, asked Massey during debate Thursday.

Massey said he disagreed with that interpretation and believes the state Supreme Court will eventually uphold the legislation.

“I think if the court were to interpret that right of privacy, which was intended for something completely different, to apply to this, then they’re really making stuff up,” Massey said.

The Senate legislation is a significant change to the near-ban legislation the House of Representatives approved last week, so House members will next consider whether to accept those changes and send the bill to the governor or to further amend the bill.

A spokeswoman for Speaker of the House Murrell Smith, R – Sumter, said Friday he had not set a date yet for his chamber’s return to the State House.

In a statement, Rep. John McCravy, R – Greenwood, said the scaled-back Senate bill is not enough.

McCravy chaired an ad hoc committee formed to lay the House’s groundwork for new abortion legislation this summer ahead of the special session.

“This amended version does not advance the cause of life in SC and I cannot concur with a bill that does nothing. We were not called back to pass a bill we already have — we were called to rewrite the laws of our state after the Dobbs decision,” McCravy said in the statement, saying he believes Senate Republicans “gave in” to Davis when he began to filibuster “instead of calling that bluff.”

Gov. McMaster, a Republican, has repeatedly voiced his support for tighter abortion restrictions on South Carolina, saying he would prefer no one in the state sought an abortion.

On Friday, the governor told reporters he believes the General Assembly will send him a new abortion bill by the end of the year.

“I’m confident that they are proceeding in the right direction and that we will end up with a reasonable bill that the great consensus of people in this state will think is reasonable and find acceptable,” he said.

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