Abortion Providers: Restrictions
South Carolina imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.
Restrictions on Where Abortion Services May Be Provided
Among the most common TRAP regulations are those restricting the provision of abortion services 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 provides any second-trimester or five or more first-trimester (including non-surgical) procedures in a month must be licensed as an "abortion clinic." S.C. Code Ann. §§ 44-7-130 (22), 44-41-75 (Enacted 1995); S.C. Code Regs. 61-12.101B, 102A. Providers who provide abortion services between 18 and 26 weeks must additionally become licensed as ambulatory surgical centers. S.C. Code Regs 61-12. 302.
"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. S.C. Code Regs. 61-12.202 – 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. S.C. Code Regs. 61-12.605B, 605C, 606, 806, 807L(1).
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." S.C. Code Regs. 61-12.102 (F). There are no provisions that protect the privacy and/or confidentiality of the patients.
Abortion providers must enter into a signed written agreement with a board-certified OB/GYN who has admitting privileges at one or more local hospitals. Nothing in the statute requires hospitals or doctors to enter into such an arrangement. S.C. Code Regs. 61-12.205(C)(2).
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 abortion services be provided in a hospital or state-certified clinic, and that abortion services after that point be provided in a hospital. S.C. Code Ann. § 44-41-20 (Enacted 1974).
Restrictions on Who May Provide Abortion Services
South Carolina prohibits certain qualified health-care professionals from providing abortion services.
Only a physician licensed to practice medicine in the state may provide abortion care. S.C. Code Ann. §§ 44-41-10(b), -20 (Enacted 1974).
South Carolina’s post-viability abortion restriction states that no abortion may be provided 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) (Enacted 1974), 44-41-10(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 abortion, such as South Carolina’s, that contain adequate exceptions to protect the woman’s life and health. NARAL Pro-Choice America opposes this law because it is unconstitutional to the extent that it prohibits pre-viability abortion 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 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).
Abortion Bans Throughout Pregnancy: Procedure Ban
South Carolina has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 12 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 had no 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 any abortion procedure that falls within a broad definition a felony, unless 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 certain second-trimester abortion procedures and has no 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.
Abortion Bans Throughout Pregnancy: Ban by Week
South Carolina outlaws abortion after 20 weeks without an adequate exception to protect women’s health or for cases in which the pregnancy was the result of rape or incest. The law has an exception for cases of fetal anomaly.
South Carolina’s law makes abortion after 20 weeks a crime, unless necessary to save a woman’s life or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. Physicians in violation of the law would be guilty of a misdemeanor, which carries a fine of up to $10,000, jail time up to three years, or both. S.C. Code Ann. § 44-41-410 to -450 (Enacted 2016), H.B. 3114, 121st Sess. Reg. Sess. (S.C. 2016).
A woman may not obtain an abortion until a minimum of 24 hours has passed after receiving a state-mandated lecture. The physician or health-care professional is required to tell the woman 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."
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.
Additionally, state-prepared materials must include a "list of health-care providers, facilities, and clinics that offer to perform ultrasounds free of charge." Materials also must include a "scientifically-accurate statement concerning the contribution that each parent makes to the genetic constitution of their biological child." The materials must be available on the South Carolina Department of Health and Environmental Control website for downloading. The website also must have a link to the list of health-care providers, facilities, and clinics that provide free ultrasounds. 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 2010).
South Carolina requires a woman seeking an abortion to wait at least 24 hours between the time she receives biased-counseling materials and when she can get the procedure. S.C. Code Ann. §§ 44-41-30 (Enacted 1962; Last Amended 1990) -310 to -380 (Enacted 2010).
Insurance Coverage & Abortion
Prohibits Abortion Coverage in the Insurance Exchange
Does South Carolina expressly prohibit plans in its state exchange from covering abortion services?
Yes. Health-insurance policies offered in the state health-insurance exchange may not include abortion coverage, with exceptions only to save a woman’s life, or if the pregnancy is the result of rape or incest. Nothing in the law prohibits the purchase of abortion coverage outside the exchange through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) S.C. Code Ann. § 38-71-238 (Enacted 2012).
Prohibits Abortion Coverage for Public Employees
Does South Carolina expressly prohibit insurance plans for public employees from covering abortion services?
Yes. Funds appropriated for health-insurance policies provided to state employees may not be used to pay for abortion services, with exceptions only to save a woman’s life, or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function, or if the pregnancy is the result of rape or incest. Nothing in the law prohibits the purchase of abortion coverage through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) H.B. 4657, 118th Gen. Assem., 2nd Reg. Sess. (S.C. 2010) (Enacted 2010).
Low-Income Women & Abortion
Restricts 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. Aug. 6, 2014), at https://www.scdhhs.gov/internet/pdf/manuals/Physicians/Manual.pdf.
A statute provides that no state or Medicaid funds shall be used for abortion, except when 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.
Young Women & 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 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 young woman must inform her of the judicial-bypass procedure. The state is required to prepare and distribute a brochure for physicians’ use in this regard.
S.C. Code Ann. §§ 44-41-10 (Enacted 1962; Last Amended 1995), -30 (Enacted 1962; Last Amended 1990), -31 to -37 (Enacted 1990).
Insurance Coverage & Contraception
No state measure.
Low-Income Women & Contraception
Supports Low-Income Women’s Access to Contraception
South Carolina provides increased access to reproductive-health-care services through a State Plan Amendment (SPA) to its Medicaid program. The SPA allows the state to cover family-planning services for women and men with incomes at or below 199 percent of the federal poverty level who are not currently enrolled in Medicaid and do not have any other health insurance. Additionally, enrollees must (1) be U.S. citizens or persons who meet the state’s defined immigration requirements, (2) be South Carolina residents, (3) not pregnant, and (4) have a Social Security Number or be able to verify an application for one.
Beneficiaries of family-planning coverage available through the SPA 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.
South Carolina State Plan Amendment, Project No. 10-010. Modfied income eligibility standards. Application for Medicaid Family Planning Coverage, Healthy Connections: South Carolina Department of Health and Human Services.
EC in the ER
South Carolina law ensures that sexual-assault survivors receive access to emergency contraception (EC) in hospital emergency rooms. Although the law does not explicitly mention EC, it does require that medical treatment for sexual-assault survivors include "medication for pregnancy prevention if indicated and if desired." S.C. Code Ann. § 16-3-1350 (Enacted 1997).
Other Important Issues
No state measure.
Fake Health Centers
State Refers to Crisis Pregnancy Centers
South Carolina law refers women to crisis pregnancy centers (CPCs). In connection with the state’s biased-counseling and mandatory-delay law, when a woman tells a health-care provider she is considering abortion, the provider must give her a state-maintained list of facilities that will satisfy the law’s mandate. CPCs are included on the list without disclaimer of their biased nature and are not distinguished from legitimate health centers. S.C. Code Ann. § 44-41-340 (Enacted, 1995; Last Amended, 2010).
State has Anti-Choice License Plates
South Carolina law provides for a "Choose Life" license-plate program that funnels money to anti-choice organizations. The program is operated by the Department of Motor Vehicles and drivers are able to purchase the specialty license plate for a fee. A percentage of the fee is retained by the state to recoup administrative costs; the rest of the funds are deposited in a special account, separate from the general fund, designated for use by the Department of Social Services to be used to support local crisis pregnancy programs through competitive grants. S.C. Stat. Ann. § 56-3-8910 (2001).
Refusals & Guarantees
Refusals of Medical Care
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? Allows physicians, nurse, technicians, and other employees of a hospital, clinic, or physician, who object in writing, to refuse to recommend, provide, or assist in abortion services. The refusal 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, allows private or non-governmental hospitals and clinics to refuse to permit the use of its facility for abortion care or admit a woman for the purpose of abortion care. The refusal of a hospital to provide or permit abortion care 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).
Counseling & Referral Bans
Counseling & Referral Ban
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).