COLUMBIA — An effort to outlaw most abortions in South Carolina appears to be heading to a special session of the Legislature following the defeat of a near-total ban.
The House Judiciary Committee voted 16-7 along party lines May 9 to advance legislation banning abortions around the sixth week of pregnancy with limited exceptions.
The committee’s Republicans refused to broaden an exception for fatal fetal anomalies, saying allowing an abortion in “severe” cases leaves too much ambiguity.
“We know what fatal means. It’s finality,” said Rep. Case Brittain, R-Myrtle Beach. “We don’t like broad words because that leaves it open to interpretation.”
Rep. Jason Elliott, R-Greenville, said he believes the definition in the bill covers the sorts of severe cases Rep. Spencer Wetmore, D-Folly Beach, sought to address.
But rejection of her proposal left in place the same “fetal anomaly” definition interpreted by Medical University of South Carolina lawyers last July in denying an abortion for Jill Hartle of Charleston.
Hours earlier, Hartle told legislators of her horrifying ordeal of being 22 weeks into her pregnancy when she learned the severity of her daughter Ivy Grace’s heart defect, which was expected to require multiple risky heart surgeries at birth and continued transplants for however long she lived.
“I’m one of the women directly affected by the six-week abortion ban,” said Hartle, who noted her daughter’s diagnosis came after the U.S. Supreme Court overturned Roe v. Wade and the state’s 2021 law temporarily took effect.
“They had meetings with the lawyers and the only anomaly they could come up with is if a child is born without a brain — if a child could be hooked up to a life-support machine, it’s not considered fatal,” she said.
“If I were to have delivered and opted for comfort care, Ivy would’ve known nothing but high doses of narcotics and excruciating pain until she passed,” she continued.
After making the decision to terminate, she and her husband had to wait weeks more to get the first appointment at a hospital in Washington, D.C., as the hairstylist’s clients continued to ask about her “cute” belly.
“When you know for a fact your child isn’t going to make it, and you have to walk around the world physically pregnant,” she said, “that trauma is what I’ll live with the rest of my life, and I blame the state of South Carolina 100 percent.”
She told the GOP-led panel she used to be a Republican but the experience flipped her politics.
“I don’t fault the doctors. They’re having to do exactly what MUSC lawyers said and their interpretation of the law,” she said. “No one wants to take the risk of losing their medical license.”
Legislators’ discussion, she said, shows they don’t understand the real-life consequences of their political stances.
Until they’ve been through such a journey themselves, “how can you place your moral high ground on someone?” she told reporters outside the meeting. “I’m an extreme woman of faith. I know exactly where my daughter is. She’s in heaven with our Lord and it is between me, my husband, my doctor and my God, not anyone else.”
Republicans’ refusal to even tweak the “fetal anomaly” definition, she said, means “the state still doesn’t give a (expletive) about my life, my mental health or my well-being.”
The committee’s vote sends the bill to the House floor on the last week of the 2023 regular session, putting it in play for an expected special session. Legislative leaders plan to let the regular session end May 11 without a law on how they can return to wrap up work on the budget. If Gov. Henry McMaster calls them back, as would be needed to finalize a spending plan, there’s no limit on what they can take up.
That would allow debate on abortion to continue. The GOP-dominated House could approve the six-week ban as early as May 16, returning it to the Senate.
The move follows months of House GOP leaders refusing to take up the Senate’s six-week ban, saying they won’t accept anything less than a ban from the start of a pregnancy.
But tactics by abortion foes changed after senators proved — yet again — that they lack the votes for a ban prior to six weeks, and it appeared the continued GOP impasse would leave South Carolina’s 22-week ban in place until at least 2024.
The “fetal heartbeat” bill would ban abortions once an ultrasound detects cardiac activity, which occurs around the sixth week of pregnancy. Victims of rape or incest could get an abortion through 12 weeks. Other exceptions beyond the fatal fetal anomaly would allow abortions to save the mother’s life or to prevent lifelong health problems.
Doctors who violate the law could be charged with a felony and fined up to $10,000 or put in prison for up to two years, as well as lose their license.
The measure is very similar to what the state Supreme Court tossed out in January as violating privacy rights in the state constitution. GOP senators tweaked it in a way designed to flip that 3-2 decision.
Kathleen McDaniel, an attorney for Planned Parenthood’s successful challenge, said the gist of the ban hasn’t changed.
“The concept of banning abortion at six weeks is exactly the same,” she told legislators.
“That is not going to save the bill from unconstitutionality,” she added, referring to a near-guaranteed second challenge.
What has changed is the makeup of the court itself. The Legislature’s replacement of Justice Kaye Hearn, who authored the main abortion opinion before retiring, made the South Carolina Supreme Court the nation’s only all-male high court.
“Now we have this all-male Supreme Court and, hopefully, they’ll rule differently on the right to privacy,” Wetmore said sarcastically about her Republican colleagues’ strategy.
All of her proposed changes failed.
That included attempts to reduce a doctor’s threatened punishment from a felony to a misdemeanor and to strike the whole bill and instead extend abortion rights until roughly 24 weeks. That would have put in state law the national precedent overturned last June, when the U.S. Supreme Court returned the legality of abortions to states.
“Have you looked at a photograph of a baby at 24 weeks?” asked Rep. John McCravy, R-Greenwood, who has led the effort in the House. “It’s fully developed. The fetal brain stem is entirely developed.”
The state Supreme Court’s decision in January left in place the 2016 law that banned abortions at the 22nd week, making South Carolina the second-least restrictive state in the Southeast, other than Virginia. However, the three clinics in South Carolina don’t provide abortions past 13 weeks, so later abortions occur at hospitals.
Data from the state’s public health agency shows abortions are on the rise, with nearly half of the women coming from another state.
Republicans say they want to stop South Carolina from being a “destination state” for abortions.
Sen. Penry Gustafson, who helped defeat the House’s near-total ban two weeks ago, indicated she still supports the six-week bill she voted for back in February but is clearly exasperated by the seemingly never-ending debate.
“I don’t like what was done,” the Camden Republican told reporters about changes made by the House Judiciary Committee, which keeps the debate going between the chambers.
“Let’s get it across the finish line so we can reduce abortions,” she said. “I feel like I’m living in a twilight zone with the merry-go-round of this legislation.”
