ANTI-CHOICE LAWS
Abortion Ban
AFTER 12 WEEKS
South Carolina's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks. S.C. Code Ann. § 44-41-85 (Enacted 1997).
South Carolina's ban is unconstitutional according to the U.S. Supreme Court's decision in Stenberg v. Carhart. 530 U.S. 914 (2000). In Stenberg, the Court held that a similar ban, which lacked an exception to protect a woman's health and was written so broadly as to ban more than one procedure, placed an undue burden on a woman's right to choose.
South Carolina's unconstitutional law makes the performance of any abortion procedure that falls within a broad definition a felony, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical illness, or physical injury and no other medical procedure will suffice. Penalties include a fine of not less than $5000, imprisonment for not less than five years, or both. S.C. Code Ann. § 44-41-85 (Enacted 1997).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure. Click here to read more about the Federal Abortion Ban.
Biased Counseling & Mandatory Delay
A woman may not obtain an abortion until after her physician, or health professional, tells her the probable gestational age of the fetus and her physician or an allied health professional informs her of the procedure to be used and presents her with a form containing the following printed statement: "You have the right to review printed materials prepared by the State of South Carolina which describe fetal development, list agencies which offer alternatives to abortion, and describe medical assistance benefits which may be available for prenatal care, childbirth, and neonatal care." A woman who chooses to review the state-prepared materials may not obtain an abortion until at least one hour after she receives them.
The state-prepared materials must: (1) depict or describe the anatomical and physiological characteristics of the fetus at two-week gestational increments; (2) describe procedures and their risks and the risks of carrying a pregnancy to term; (3) describe the mechanisms available for obtaining child-support payments; (4) include information about the availability of medical assistance benefits for prenatal care, childbirth, and neonatal care, including the names, addresses, and phone numbers of appropriate agencies; and (5) provide a comprehensive list of public and private agencies and services, including adoption agencies, available to assist the woman through pregnancy, upon childbirth, and while the child is dependent. This law applies to all facilities in which any second-trimester, or five or more first-trimester, procedures are provided per month.
S.C. Code Ann. §§ 44-41-30 (Enacted 1962; Last Amended 1990) -310 to -380 (Enacted 1995).
Counseling Ban/Gag Rule
South Carolina bans the Department of Health and Environmental Control, and its employees, from providing abortion counseling or referrals. South Carolina also prohibits any funds appropriated under the South Carolina Birth Defects Program from being used to counsel or refer women for abortion services. S.C. Code Ann. § 44-44-30 (Enacted 2004).
Insurance Prohibition for Abortion
Funds appropriated to the State Health Insurance Plan may not be used to pay for an abortion except in cases of rape, incest, or to preserve a woman's life. H.B. 4800, 117th Gen. Assem., 2nd Reg. Sess. (S.C. 2008) (Enacted 2008).
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
South Carolina allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Private or non-governmental hospitals or clinics, physicians, nurses, technicians, or other employees of a hospital, clinic, or physician.
What does the refusal clause allow? No physician, nurse, technician, or other employee of a hospital, clinic, or physician, who objects in writing, may be required to recommend, perform, or assist in the performance of an abortion. The refusal of a person to perform or assist may not be a basis for liability or discrimination. A person discriminated against in employment may bring a civil action for damages and reinstatement. Except in an emergency, no private or non-governmental hospital or clinic may be required to permit the use of its facility for abortion or admit a woman for the purpose of abortion. The refusal of a hospital to perform or permit abortion in accordance with an adopted policy may not be a basis for civil liability.
Must the refusal be in writing? Yes.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? Yes, in emergency situations, no hospital or clinic may refuse admittance.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
S.C. Code Ann. §§ 44-41-40, -50 (Enacted 1962; Last Amended 1974).
Restrictions on Low-Income Women's Access to Abortion
South Carolina prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, or the pregnancy is the result of rape or incest reported to the police unless the woman is unable to report for physiological or psychological reasons. S.C. Dep't of Health & Human Servs., Medicaid Provider Manual, §§ 2-102-103 (Rev. Nov. 1, 2008), at http://www.dhhs.state.sc.us/internet/pdf/manuals/Physicians/Manual.pdf.
A statute provides that no state or Medicaid funds shall be used to perform abortions, except for those abortions authorized by federal law under the Medicaid program. S.C. Code Ann. § 1-1-1035 (Enacted 1976). Federal law currently requires states participating in the Medicaid program to fund abortion in cases of life endangerment, rape, or incest.
Restrictions on Young Women's Access to Abortion
South Carolina law restricts young women's access to abortion.
Is the law enforceable? Yes.
Who is considered a minor? A young woman under the age of 17 who has never been married and is not freed by court order from the care, custody, and control of her parents.
What is required - parental consent or parental notice? Consent.
Who must provide consent/be notified? One parent.
Are there other trusted adults who may provide consent instead? A grandparent or any person who has been standing in loco parentis.
What is the process for obtaining consent? A young woman may not obtain an abortion unless the attending or referring physician secures the "informed" written consent, signed and witnessed, of one parent or grandparent.
May the parental mandate be waived if a young woman is a victim of rape or incest? Yes, if the pregnancy is the result of incest and the attending physician reports the incest to the department of social services or a law enforcement agency.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if the "physician determines that a medical emergency exists involving the life of or grave physical injury to the pregnant woman."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that she is mature and well informed enough to make her own decision or that an abortion is in her best interests.
Are there other significant requirements under the law? If a young woman's parent refuses to give consent to the abortion and the court also refuses to consent and she gives birth, the refusing parent and the "father" are liable for child support until the young woman turns 18 or is emancipated.
Has a court considered the constitutionality of this law? No.
Other information about the law: A physician who counsels a pregnant young woman as to the decision whether to have an abortion must inform her of the judicial bypass procedure. The state is required to prepare and distribute a brochure for physicians' use in counseling pregnant young women.
S.C. Code Ann. §§ 44-41-10 (Enacted 1962; Last Amended 1995), -30 (Enacted 1962; Last Amended 1990), -31 to -37 (Enacted 1990).
Spousal Consent
A court held that South Carolina's husband consent requirement for abortion is unconstitutional. Floyd v. Anders, 440 F. Supp. 535 (D.S.C. 1977), vacated and remanded on other grounds, 440 U.S. 445 (1979).
This law provides that a married woman who is living with her husband may not obtain an abortion during the third trimester of pregnancy without her husband's consent. S.C. Code Ann. § 44-41-20(c) (Enacted 1974).
The U.S. Supreme Court held that requiring a woman to obtain her husband's consent prior to an abortion is unconstitutional. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 67-72 (1976).
Targeted Regulation of Abortion Providers (TRAP)
South Carolina imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:
Restrictions on Where Abortions May Be Performed
Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which place medically unnecessary and costly requirements on doctors and can decrease the availability of abortion care for women. South Carolina has such regulations, including:
Any provider that performs any 2nd trimester or five or more 1st trimester (including non-surgical) abortions in a month must be licensed as an abortion clinic. S.C. Code Ann. §§ 44-7-130 (22), 44-41-75 (Enacted 1995); 61-12 S.C. Code Ann. Regs. 101B, 102A. Providers who perform abortions beyond 18 weeks and up to 26 weeks must additionally become licensed as ambulatory surgical centers. 61-12 S.C. Code Ann. Regs. 302.
All licensed facilities are subject to inspection at any time, and "inspectors shall have access to all properties and areas, objects, records and reports, and shall have the authority to make photocopies of those documents required in the course of inspections or investigations." 61-12 S.C. Code Ann. Regs. 102 (F). There are no provisions that protect the privacy and/or confidentiality of the patients.
"Abortion clinics" are subject to more than 30 pages (including more than 40 sub-sections) of regulations regarding administration, professional qualifications, patient and employee testing, and physical plant specifications. 61-12 S.C. Code Ann. Regs. 202 - 205, 304, 305, 309, 401A, 605, 606, 806, 807A-L. Regulations include many requirements that are not medically-related, such as: "All outside areas, grounds and/or adjacent buildings shall be kept free of rubbish, grass, and weeds...;" garbage cans stored outside must be cleaned immediately after being emptied; air temperature must be maintained at between 72 and 76 degrees in "patient areas;" and parking facility requirements. 61-12 S.C. Code Ann. Regs. 605B, 605C, 606, 806, 807L(1).
The requirements are in addition to local and state codes, standards, and ordinances, as well as standard building, plumbing, electrical, and mechanical codes with which the clinics must comply. 61-12 S.C. Code Ann. Regs. 802.
An appellate court held that the regulations are constitutional. Greenville Women's Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000), cert. denied, 531 U.S. 1191 (2001). With one exception concerning the privacy of patient records, the district court on remand upheld the constitutionality of the regulations after considering additional constitutional challenges. The appellate court again upheld the constitutionality of the regulations, but reversed the district court's finding that allowing state inspectors access to clinic records violated patients' right to privacy. Greenville Women's Clinic v. Bryant, No. 6:96-1898-20 (D. S.C. Aug. 31, 2001), aff'd in part, rev'd in part, 317 F.3d 357 (4th Cir. 2002), cert. denied, 538 U.S. 1008 (2003).
South Carolina requires that second trimester abortions be performed in a hospital or state-certified clinic, and that third trimester abortions be performed in a hospital. S.C. Code Ann. § 44-41-20 (Enacted 1974).
Restrictions on Who May Perform Abortions
South Carolina prohibits certain qualified health care professionals from performing abortions.
Only a physician licensed to practice medicine in the state may perform an abortion. S.C. Code Ann. §§ 44-41-10(b), -20 (Enacted 1974).
PRO-CHOICE LAWS
Emergency Contraception
EMERGENCY CONTRACEPTION (EC) FOR SEXUAL ASSAULT VICTIMS
South Carolina law ensures that sexual assault victims receive access to emergency contraception (EC) in hospital emergency rooms. Although the law does not explicitly mention EC, the law does require that medical treatment for sexual assault victims include "medication for pregnancy prevention if indicated and if desired."
S.C. Code Ann. § 16-3-1350 (Enacted 1997).
Low-Income Women's Access to Family Planning
South Carolina provides increased access to reproductive health care services through a Section 1115 family planning waiver. The waiver allows the state to cover family planning services for all women with incomes at or below 185% of the federal poverty level who are not otherwise eligible for state health care programs.
Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: family planning initial or annual examinations, counseling, instruction and education and supply visits; FDA-approved and Medicaid-covered birth control including intrauterine devices, diaphragms, condoms, vaginal spermicides, sterilizations, Norplant, Depo-Provera injections, and all prescription and over the counter products; pelvic exams, pap smear and necessary laboratory work; laboratory and radiology procedures associated with a family planning encounter; family planning services for adolescents.
The waiver will expire on Dec. 31, 2010.
S.C. Family Planning Demonstration Fact Sheet, Ctrs. for Medicare and Medicaid Servs.; S.C. Dept. of Health and Human Servs., Request to Renew the Family Planning Waiver, Nov. 2005 at http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/MWDL/itemdetail.asp?filterType=none&filterByDID=-99&sortByDID=2&sortOrder=ascending&itemID=CMS1183743&intNumPerPage=2000 (last visited Oct. 31, 2008); NARAL Pro-Choice America Survey of State Medicaid Offices
OTHER LAWS
Post-Viability Abortion Restriction
South Carolina's post-viability abortion restriction provides that no abortion may be performed after the 24th week unless the attending physician and another independent physician certify in writing that the abortion is necessary to preserve the woman's life or health. If both physicians certify that the abortion is necessary to preserve the woman's mental health, an independent psychiatrist must also certify that the abortion is necessary. S.C. Code Ann. §§ 44-41-10(k) & (l) (Enacted 1974), 44-41-20(c) (Enacted 1974).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions, such as South Carolina's, that contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes this law because it is unconstitutional to the extent that it prohibits pre-viability abortions by defining viability at 24 weeks. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside of a woman's body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).
