COLUMBIA, S.C. — Women who get an abortion in South Carolina would be eligible for the death penalty if a proposal at the State House becomes law.
A bill called the South Carolina Pre-Natal Equal Protection Act would “afford equal protection of the laws to all preborn children from the moment of fertilization,” and reclassify any act that ends a pregnancy as “wilful prenatal homicide.”
Under the bill, an abortion could be punished like any murder, leading to sentences of 30 years in prison up to the death penalty.
People rally outside the South Carolina State House as members of the state’s House of Representatives prepare to vote on legislation related to an abortion ban on Aug. 30.
The bill explicitly exempts from prosecution a woman who receives an abortion if “she was compelled to do so by the threat of imminent death or great bodily injury.”
The proposal has received wide attention at a time when Republican-led states are debating how far to go in regulating or banning abortion after the U.S. Supreme Court ruled last year that the procedure is no longer subject to federal legal protections.
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State Rep. Rob Harris, a Spartanburg Republican who sponsored the measure, said the bill stems from the Legislature’s need to clarify when life begins.
“We have a problem with abortion, we don’t respect all life,” Harris said. “So, what my bill uniquely does is that it protects all life by defining life at conception. We have to ask ourselves as a culture, whether we believe life begins at conception or not. The ramifications of that are the same for anybody else who would take another life.”
Harris added that the bill’s intent was not to subject a mother who undergoes an abortion to the death penalty, but to save babies.
“The state has become an abortion destination, so what are we doing to stop abortion?”
When asked about whether the media’s focus on aborting mothers potentially receiving the death penalty weakens his bill or the chances of the bill passing, Harris said, “The laws are already on the books about murder, and all that stuff. I’m not arguing to change any of those laws. The bill is forcing our culture to decide, is this really life inside?”
The bill, introduced in December, has garnered 16 co-sponsors in the House. It currently awaits action by the House Judiciary Committee.
Ann Warner, the CEO of the Women’s Rights Empowerment Network, says a woman having the abortion or the physician performing the procedure could be charged. She said the bill is policing reproductive health care, which she called “truly scary.”
“We’re extremely alarmed and worried about the increasing, extreme legislation that is not only being introduced, but where multiple co-sponsors are signing on, that would criminalize women for having abortions or for having any kind of pregnancy outcome,” Warner said. “It would force … the state to intrude into the most personal private decisions that people have to make and would result in sending women to jail.”
“I think any time that you are going to punish someone for seeking health care, regardless of the reason, it goes way beyond what the Legislature should be doing, and it punishes women far greater than others who might commit similar or other offenses that might be deemed murder,” said Vicki Ringer, public affairs director at Planned Parenthood South Atlantic. “It will lead to unintended consequences.
The proposal has also drawn the ire of U.S. Rep. Nancy Mace, R-S.C., who blasted the proposal on the U.S. House floor last week.
“To see this debate go to the dark places, the dark edges, where it has gone on both sides of the aisle, has been deeply disturbing to me as a woman, as a female legislator, as a mom, and as a victim of rape,” Mace said, according to The Hill.
The bill comes as state lawmakers consider how to respond to two landmark court rulings in the past year: a U.S. Supreme Court decision last summer overturning the 50-year-old Roe v. Wade case that established federal protections for women seeking access to abortion, and a South Carolina Supreme Court decision in January that ruled the state constitution’s right to privacy protects that same right for women in the Palmetto State.
The latter decision struck down a “fetal heartbeat” law that would have banned abortion after about six weeks of pregnancy — a law that had been blocked from going into effect by federal courts before the Roe protections were removed.
Currently, abortion is legally available in South Carolina up until about 20 weeks of pregnancy.
The state Supreme Court’s ruling hasn’t stopped Republican lawmakers from attempting to place new restrictions on the procedure. Last month, the South Carolina House passed a near-total abortion ban despite the new precedent. The Senate passed a new six-week bill specifically designed to respond to the state Supreme Court’s decision.
Lawmakers also replaced Justice Kaye Hearn, who authored the abortion decision and had hit the mandatory retirement age for state judges, with appellate judge Gary Hill, creating the state’s first all-male Supreme Court in 35 years.
Two weeks ago, Greenville police arrested a woman who allegedly consumed abortion pills in order to end a 25-week pregnancy in 2021. Self-medicated abortions are banned as a misdemeanor in South Carolina. The woman reportedly sought medical help at a local hospital for labor pains after taking the pills.
Q&A: Abortion medication explained
How does medication abortion work?
Medication abortions became the preferred method for ending pregnancy in the U.S. even before the Supreme Court overturned Roe v. Wade. These involve taking two prescription medicines days apart — at home or in a clinic.
Abortion procedures are an invasive medical technique that empties the womb. They are sometimes called surgical abortions, although they don’t involve surgery.
Abortion by pills involves the drugs mifepristone and misoprostol. As more states seek abortion limits, demand for the pills is expected to grow.
Two pills work in combination
Mifepristone is taken first, swallowed by mouth. The drug dilates the cervix and blocks the effects of the hormone progesterone, which is needed to sustain a pregnancy.
Misoprostol, a drug also used to treat stomach ulcers, is taken 24 to 48 hours later. The pill is designed to dissolve when placed between the gums and teeth or in the vagina. It causes the uterus to cramp and contract, causing bleeding and expelling pregnancy tissue.
How late in pregnancy can the drugs be used?
Abortion medication is approved for use up to the 10th week of pregnancy.
The pills may be taken in a doctor’s office or clinic, where patients sometimes have an ultrasound or lab tests beforehand. Some providers also offer the pills through telehealth visits and then send patients the medication by mail.
Use of the pills has been increasing in recent years. As of 2020, they accounted for 54% of all U.S. abortions, according to preliminary data from the Guttmacher Institute. The group’s final estimate is due later this year.
Are the drugs safe? What are the risks?
Studies and real-use evidence show that when taken together, the pills are safe and up to 99% effective. Side effects may include nausea, vomiting and diarrhea.
Bleeding is normal. Very heavy bleeding — soaking more than two pads an hour for more than two hours — is uncommon but requires medical attention.
Dr. Stephanie Rand, a New York ob-gyn and abortion specialist with the advocacy group Physicians for Reproductive Health, says pregnancy tests should not be used right away to determine if a medication abortion was successful because the pregnancy hormone may linger in the body for several weeks. Bleeding, with blood clots that include lighter colored tissue, are signs of success, she said.
Serious complications are very rare. The Food and Drug Administration says more than 3.7 million U.S. women have used mifepristone since it was approved more than 20 years ago. The agency has received 26 reports of deaths in women using the medication, including two involving ectopic pregnancies, which grow outside the womb.
The medications are not recommended for certain patients, including those with suspected ectopic pregnancies or with implanted IUD birth control devices.
What are the costs and rules for use?
Costs vary by location but are similar to abortion procedures and may total more than $500. Health insurance coverage varies, with some plans making the pills free or low cost and others not covering them at all.
Mifepristone is sold under the brand name Mifeprex and misoprostol under the brand name Cytotec, but both pills are available as generics.
The FDA approved mifepristone to terminate pregnancy in 2000, when used with misoprostol. At the time, it imposed several limits on how the drug could be prescribed and dispensed.
In December, the agency dropped the biggest restriction: a requirement that patients pick up the medication in person. The FDA said a scientific review of the drug’s use — including during the COVID-19 pandemic — showed that women could safely receive the pills through the mail after an online consultation, without any increase in side effects or complications.
The decision allowed mail delivery of the pills nationwide, a change long-sought by medical professional groups and abortion-rights supporters.
Still, millions of women will have trouble accessing the pills due to a patchwork of state laws targeting abortion broadly and the pills specifically. About half of U.S. states are expected to ban or greatly restrict abortion.
Will the pills be covered by state abortion bans?
Legal experts foresee years of court battles over access to the pills, as abortion-rights proponents bring test cases to challenge state restrictions.
There are strong arguments and precedents on both sides, experts note, though little certainty about which side might prevail.
The Biden administration’s Justice Department has already signaled plans to challenge state restrictions on medication abortion. And federal lawyers are likely to be joined by outside parties, including abortion rights groups like Planned Parenthood and even the companies that make the pills.
The chief argument against pill restrictions is likely to be the longstanding principle that federal laws, including FDA decisions, preempts state laws. Indeed, few states have ever tried to fully ban an FDA-approved drug because of past rulings in the agency’s favor.
Still, states with blanket abortion bans are likely to interpret them as barring abortion pills. Many of the laws don't distinguish between abortion procedures and medication abortion.
“In the short term, those states that ban abortion are going to assume that their bans also include medication abortion and that will be prohibited,” said Greer Donley, a professor specializing in reproductive health care at the University of Pittsburgh Law School.
What is the current situation in the states?
Even if blanket bans are successfully challenged, more than 30 states have laws specifically restricting access to abortion pills. For example, 19 states require that clinicians be physically present when the drug is administered.
Those laws could withstand court challenges. States have long had authority over how physicians, pharmacists and other providers practice medicine.
States also set the rules for telemedicine consultations used to prescribe medications. Generally that means health providers in states with restrictions on abortion pills could face penalties, such as fines or license suspension, for trying to send pills through the mail.
Women have already been traveling across state lines to places where abortion pill access is easier. That trend is expected to increase.
Meanwhile, some women will still get the medication via online pharmacies in Canada and overseas, often with telehealth consultations from foreign doctors. The practice is technically illegal but essentially unenforced, and advocates believe women will increasingly choose this method as more states move to ban abortions.
“Anti-abortion states are going to do everything they can to restrict medication abortion, but practically speaking people have been and will continue to access it through the mail from international pharmacies,” Donley said.
Donley expects lawsuits based on various legal theories to play out for a few years before any clear decisions emerge.
One key question is how the nation’s top court might rule if and when it takes up those court cases. While the Supreme Court has rejected a constitutional right to abortion, conservative justices have also generally deferred to FDA's primacy over drug decisions.
