Politics & Government

The history of South Carolina’s abortion laws

Planned Parenthood supporters rally for women’s access to reproductive health care on ``National Pink Out Day’’ at Los Angeles City Hall, Tuesday, Sept. 29, 2015. (AP Photo/Nick Ut)
Planned Parenthood supporters rally for women’s access to reproductive health care on ``National Pink Out Day’’ at Los Angeles City Hall, Tuesday, Sept. 29, 2015. (AP Photo/Nick Ut) AP file photo

With a national spotlight shining on South Carolina, 20 Democratic candidates for president offered their views on abortion Saturday at a Columbia event hosted by Planned Parenthood Action Fund.

The forum — a first of its kind this election cycle, according to the abortion-rights advocacy group — follows a decades-long debate over the sanctity of life and a woman’s ability to make decisions about her own body, recently reignited as GOP-controlled states have passed a myriad of new abortion restrictions.

But in South Carolina, where state senators are months away from a knock-down, drag-out fight over a proposal to defy Roe v. Wade and outlaw abortion after about six weeks, little ink has been spent on how we got here or what laws are already on the books.

The following is an outline of how abortion restrictions have evolved in South Carolina as the Palmetto State, like others, have continued to whittle away at the U.S. Supreme Court’s 1973 ruling affirming a woman’s right to have an abortion.

Colonial times

In the 1700s, abortion is generally permitted under U.S. common law. All states allow the procedure until “quickening,” when the pregnant woman can first feel fetal movement. That is usually about halfway through the pregnancy.

Mid-1800s

Starting with Massachusetts, states begin to criminalize abortion for religious and moral reasons — and at the behest of doctors who say the procedure shouldn’t be provided by untrained midwives and unconventional providers.

Twenty states pass abortion bans by 1860, and nearly every state bans it by 1900. Most states allow abortions only when it would be life threatening for the woman to carry the pregnancy to term.

Still, the practice continues, albeit illegally. Hundreds of thousands of women each year continue to get abortions, some of them self-induced, and some of them deadly. Driven underground, abortion is a leading cause of maternal mortality in America during this period.

Early 1960s

In 44 states, including South Carolina, abortion is allowed only when a woman’s life is threatened by her pregnancy. Performing an abortion is a felony offense. In 15 states, doctors can be jailed up to 10 years for performing the procedure. Nine states have made it illegal to help or counsel a woman seeking an abortion. And 14 states — including South Carolina — have made it illegal for a woman to obtain an abortion.

In addition to punishing the doctor who performed the procedure, S.C. law also punishes the woman for “conspiracy to commit abortion” — a misdemeanor that carries up to two years in jail and a $1,000 fine.

Still, illegal abortions account for 17% of all pregnancy-related deaths in 1965, according to the Guttmacher Institute, a nonprofit research center on sexual and reproductive health.

But soon, doctors, lawyers, scholars and even some religious leaders begin calling on states to loosen their abortion restrictions — noting those laws haven’t stopped large numbers of women from getting abortions, only made the procedures more dangerous.

1967

Colorado becomes the first U.S. state to loosen its abortion law. Following model legislation drafted by the American Law Institute, Colorado begins to permit abortions if the pregnancy endangers the woman’s life, health or mental health, if the pregnancy resulted from rape or incest, or if the fetus has a physical or mental defect.

Between now and the U.S. Supreme Court’s landmark Roe v. Wade decision in 1973, 17 states loosen their abortion restrictions. They include South Carolina, which also based its new law off the American Law Institute recommendations.

Four of those 17 states completely repeal their abortion laws, including New York after 367 women died from unsafe abortions in New York City in the previous decade.

1970

South Carolina officially loosens its abortion restrictions, even though a majority of the S.C. public still disapproves of abortion. While South Carolinians largely believe abortion is wrong, they don’t believe in legislating morality, according to a 1972 edition of the South Carolina Law Review.

In South Carolina, abortions now require the written approval of three separate doctors, plus the written consent of a parent if the patient is a minor. If the woman is married, she needs her husband’s consent to get an abortion — unless the pregnancy threatens her life. All abortions must be performed at a hospital, and reports on them must be filed with the state.

1973

In Roe v. Wade, the U.S. Supreme Court rules that women have a constitutional — but not absolute — right to an abortion. The ruling strikes down any remaining state laws that previously criminalized abortion. The court rules that states can’t ban abortion before viability — when a fetus can survive outside the uterus, usually at about 24 weeks.

The ruling stipulates that any post-viability abortion bans must contain exceptions for abortions necessary to protect the pregnant woman’s life or health.

Over the next four decades, South Carolina and a host of other states will pass scores of abortion restrictions. Some have tiptoed around the framework set down by Roe v. Wade, whittling away at women’s easy access to abortions. Other proposals — such as South Carolina’s 20-week abortion ban, passed in 2016 — outright defy Roe v. Wade and are ripe for legal challenges that could be used as a vehicle for the anti-abortion movement to overturn the 1973 ruling.

1974

A year after Roe v. Wade, South Carolina bans abortions after the fetus has reached viability — setting that mark in stone at 24 weeks. The law allows abortions after 24 weeks only if two doctors certify in writing that the procedure is necessary to save the woman’s life or health. Pro-choice groups oppose the law because it defines viability at 24 weeks, even though viability varies with every pregnancy.

1976

Congress passes the first Hyde Amendment that blocks federal Medicaid money from paying for abortions.

In turn, South Carolina passes a similar statute barring state or Medicaid money from paying for abortions, except in cases where the federal government requires it.

1977

Congress revises the Hyde Amendment. States now can deny Medicaid funding for abortions in most cases. But they cannot block Medicaid funding of abortions of pregnancies that stem from rape or incest or endanger the woman’s life or health.

The amendment is upheld by the U.S. Supreme Court three years later in Harris v. McRae.

Taxpayer dollars can pay for abortions in South Carolina only in those specific cases.

1990

Republican S.C. Gov. Carroll Campbell signs into law a new requirement that girls under age 17 seeking an abortion must first get the written approval of a parent, grandparent or judge.

The law was passed after the U.S. Supreme Court ruled that states could impose parental consent requirements on minors, as long as they also let minors bypass their parents by going to a judge for permission. By the mid-1990s, 33 states will have passed similar laws.

1995

S.C. lawmakers revise state law so that any health care provider that performs at least five abortions a month — or any second trimester abortions — must be licensed as an “abortion clinic” and face a host of new regulations. Those clinics also must submit to inspection at any time.

1997

S.C. lawmakers allow sexual-assault survivors to receive emergency contraception in hospital emergency rooms.

2000

S.C. lawmakers pass a law restricting state or Medicaid dollars from funding abortions, except for abortions covered by the Hyde Amendment: when the pregnancy results from rape or incest or threatens the woman’s life or health.

2001

State lawmakers prohibit the state health plan for state employees from paying for abortions except in the Hyde Amendment cases.

2008

S.C. lawmakers consider a first-of-its-kind proposal to require women seeking abortions to first view an ultrasound image of the fetus. That proposal fails. But the General Assembly does pass a law requiring physicians to inform the woman of the fetus’ gestational age and of her right to see an ultrasound image of the fetus. If the woman gets an ultrasound, she must then wait an hour before the abortion can be performed.

Pro-life supporters of the bill, including GOP Gov. Mark Sanford, say they hope women will see the ultrasound images and decide to keep their unborn children. But women’s health groups say the proposal is meant to shame women during one of the hardest decisions of their lives.

2010

S.C. lawmakers pass a law requiring women who seek an abortion to wait at least 24 hours after receiving written materials telling women about fetal development, different types of abortion procedures, and agencies and services that can help them during and after the pregnancy, including adoption agencies. Women’s rights groups decry the state-provided materials as “biased counseling” that discourages them from getting an abortion.

Also that year, the state began prohibiting health insurance policies for state employees from paying for abortions, except in the Hyde Amendment exceptions.

2012

S.C. lawmakers ensure policies offered in the state’s health insurance exchange don’t cover abortions, except in the Hyde Amendment exceptions.

2016

Republican Gov. Nikki Haley signs into law a 20-week abortion ban that includes no exceptions for rape or incest. The law allows doctors to perform abortions after 20 weeks only if the pregnancy threatens the woman’s life or the fetus will die anyway because of an anomaly. Doctors who break the law can be charged with a misdemeanor and face up to three years in jail and a $10,000 fine.

The Pain-Capable Unborn Child Protection Act openly defies Roe v. Wade, which bans abortion restrictions before viability — around 24 weeks. But no one has challenged it yet.

2017

S.C. House passes “dismemberment” abortion ban that targets a rare procedure, typically reserved for pregnancies with defective fetuses or severe medical complications, in which the physician uses forceps to pull apart the fetus before removing it in pieces.

2018

The “dismemberment” ban is defeated in the Senate after it was hijacked and turned into a ban on virtually all abortions in South Carolina. Senate Democrats filibuster the proposal to death in a days-long fight that showed the S.C. Senate — as currently constituted — does not have the votes to pass an restrictive abortion measure.

2019

The S.C. House passes a 6-week “fetal heartbeat” abortion ban that defies Roe v. Wade. Its supporters acknowledge they seek a court fight that could be used to overturn the 1973 ruling. The bill is not expected to be debated in the Senate until April or May of 2020, at the end of the two-year legislative session and just before the June primary elections.

SOURCES: The State newspaper’s archives. S.C. code of laws. The Guttmacher Institute. The Pew Research Center. The South Carolina Law Review. The Marginal Revolution blog. StudentsforLife.org. National Abortion and Reproductive Rights Action League. The Atlantic.

Avery G. Wilks is The State’s senior S.C. State House and politics reporter. He was named the 2018 S.C. Journalist of the Year by the South Carolina Press Association. He grew up in Chester, S.C., and graduated from the University of South Carolina’s top-ranked Honors College in 2015.
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