Earlier this year, the United States Supreme Court overturned the controversial Roe v. Wade decision returning the regulation of abortion to the states. Since that time, the South Carolina General Assembly has been crafting legislation in response. The South Carolina Senate returned to the State House on Tuesday, October 18th to consider H.5399, a bill that purports to ban abortion with exceptions for rape, incest, and the life of the mother. In days leading up to the return of the Senate, there has been an effort by pro-life groups to encourage senators to bypass the legislative process, accept language adopted by the House of Representatives, and send the bill to Governor McMaster. While I have the fervent desire to save lives and reduce abortions, I and a number of other pro-life senators have serious concerns about the House language.
Before I address those concerns, I want to be clear, I support life. Our society is better when we all support life, and we should codify that support with laws that protect the innocent and the vulnerable. I am comfortable that any review of my public record on this issue would confirm this position. As for this specific issue, I oppose abortion with exceptions for the life and health of the mother, rape, incest, and fatal fetal anomalies - those anomalies that are inconsistent with life outside the womb. Moreover, I have consistently voted that way.
As for H.5399 there are four critical problems that make accepting it as the law of the land problematic.
First, the House language does not include an exception for fatal fetal anomalies. These are real, devastating anomalies that arise during pregnancy. Often detected in the first trimester, the House language would require a woman to carry the child for another six months, knowing that the child is not capable of sustaining life after birth. Last year, when the Senate passed the ban on abortions after the detection of a fetal heartbeat, the Senate insisted on an exception for fatal fetal anomalies. That bill would not have passed without that exception. The House knew that and agreed to the exception in the Fetal Heartbeat law. There was good reason to include that exception in the Fetal Heartbeat law. There is good reason to include it now. Not including a fatal fetal anomaly exception in this bill is problematic.
Second, there is real concern that the House bill outlaws some common contraceptives. The House language defines a contraceptive as a device or drug that prevents the fertilization of the egg. But many forms of contraception work to prevent a fertilized egg from implanting in the uterus, which takes place after conception. I will not vote to outlaw contraceptives that have long and established uses. I am unwilling to leave it to the courts to figure out what the legislature meant with ambiguous language.
Third, while I believe the House intended to provide an exception for rape victims, it is questionable whether the language actually does that. It is important to understand that we are drafting laws that must withstand legal scrutiny. The problem is the House used a term that is not defined and is not used in South Carolina’s criminal laws. The Senate version fixed a similar problem in the Fetal Heartbeat law. The House language does not include that fix, which means a court would be left to determine what the House’s rape exception means and how it applies, if at all. The irony here is that for 50 years this issue has been tied up in the courts of America. It seems absurd that at the first opportunity we are being asked to send the issue back to the courtroom.
Finally, on August 17, 2022, the South Carolina Supreme Court enjoined the Fetal Heartbeat law. The basis for the injunction was that South Carolina has multiple laws relating to abortion, creating uncertainty about what the law actually is. The legislature passed a law in 1974 that essentially codified the Roe v. Wade decision. Later, the legislature passed a ban on abortion once an unborn child can feel pain, determined to be at the 20-week stage. Later still, the legislature passed the Fetal Heartbeat law, effectively prohibiting abortions after 6 weeks. But in none of those instances did the legislature repeal any of the prior laws when it passed the newer laws. In its injunction order, the South Carolina Supreme Court went so far as to identify language in the law that says the legislature specifically intended not to repeal prior laws. Some of the laws have criminal penalties that conflict. So, what is the law? And what penalties are attached? I hope that all people would agree that we cannot assign a criminal penalty to someone who is unable to determine if what he or she is doing is criminal. This applies to any issue.
The problem identified by the South Carolina Supreme Court’s injunction is one we can fix. In fact, the Senate version of H.5399 did fix the problem. The House language does not. Further, it is irresponsible to ignore the Supreme Court’s order and hope the justices change their minds. Not fixing the problem would almost certainly jeopardize the House bill if it were to pass, it would endanger the Fetal Heartbeat law, and it would likely open South Carolina to abortion on demand, something only the most extreme of views embraces.
The process of passing legislation is long and complicated. It’s that way for a reason. It allows for ideas, debate, identification of unintended consequences, and when deciding on a pathway, the ability to ensure the final product accomplishes the agreed-upon goals and will withstand legal challenges. My desire is to craft legislation that will actually become law. Not another feel-good measure that languishes in the courts. This final phase often includes reconciling versions passed by the House and Senate. That is the stage we now find ourselves in. Receding abdicates the representation of the citizens of Senate District 38 to others and, in this case, unnecessarily results in flawed legislation that jeopardizes life and health. I cannot support that, and many of my fellow pro-life senators feel the same way. We are, I am, pro-life.