On February 8, 2023, the South Carolina Senate passed a revised and improved Fetal Heartbeat Bill, S. 0474. The South Carolina Supreme Court had struck down the previous law. The Bill now heads to the House of Representatives. Sponsors: Senators Grooms, Massey, Kimbrell and Adams.
A BILL
TO AMEND ARTICLE 6, CHAPTER 41, TITLE 44 OF THE SOUTH CAROLINA CODE OF LAWS, RELATING TO THE FETAL HEARTBEAT AND PROTECTION FROM ABORTION ACT, SO AS TO PROVIDE THAT ABORTIONS MAY NOT BE PERFORMED IN THIS STATE AFTER A FETAL HEARTBEAT HAS BEEN DETECTED EXCEPT IN CASES OF RAPE OR INCEST during the first twelve weeks of pregnancy, IN MEDICAL EMERGENCIES, OR IN LIGHT OF A FATAL FETAL anomaly; to define necessary terms; TO REPEAL SECTION 2 OF ACT 1 OF 2021; TO REPEAL sections 44-41-10 and 44-41-20 OF THE S.C. CODE; AND TO REPEAL ARTICLE 5, CHAPTER 41, TITLE 44 OF THE S.C. CODE subject to certain conditions.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 6, Chapter 41, Title 44 of the S.C. Code is amended to read:
Article 6
Fetal Heartbeat and Protection from Abortion Act
Section 44-41-610. As used in this article:
(1) “Conception” means fertilization of an ovum by sperm.
(2) “Contraceptive” means a drug, device, or chemical that prevents conceptionovulation, conception, or the implantation of a fertilized ovum in a woman’s uterine wall after conception.
(3) “Fatal fetal anomaly” means that, in reasonable medical judgment, the unborn child has a profound and irremediable congenital or chromosomal anomaly that, with or without the provision of life-preserving treatment, would be incompatible with sustaining life after birth.
(3)(4) “Fetal heartbeat” means cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.
(4)(5) “Gestational age” means the age of an unborn human individualchild as calculated from the first day of the last menstrual period of a pregnant woman.
(5)(6) “Gestational sac” means the structure that comprises the extraembryonic membranes that envelop the human fetusunborn child and that is typically visible by ultrasound after the fourth week of pregnancy.
(6)(7) “Human fetus” or “unborn “Unborn child” each means an individual organism of the species homo sapiens from fertilization until live birth.
(7) “Intrauterine pregnancy” means a pregnancy in which a human fetus is attached to the placenta within the uterus of a pregnant woman.
(8) “Medical emergency” means a condition that, by any reasonable medical judgment, so complicates the medical condition of a pregnant woman that it necessitates the immediate abortion of her pregnancy to avert her death without first determining whether there is a detectable fetal heartbeat or for which the delay necessary to determine whether there is a detectable fetal heartbeat will create serious risk of a substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. A condition must not be considered a medical emergency if based on a claim or diagnosis that a woman will engage in conduct that she intends to result in her death or in a substantial and irreversible physical impairment of a major bodily function.
(9) “Physician” means any person licensed to practice medicine and surgery, or osteopathic medicine and surgery, in this State.
(10) “Pregnant” means the condition of a woman after conception until the termination of gestation. Pregnancy begins when a fertilized ovum implants in a woman’s uterine wall.
(11) “Rape” has the same meaning as criminal sexual conduct, regardless of the degree.
(10)(12) “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
(11) “Spontaneous miscarriage” means the natural or accidental termination of a pregnancy and the expulsion of the human fetus, typically caused by genetic defects in the human fetus or physical abnormalities in the pregnant woman.
Section 44-41-620. (A) A court judgment or order suspending enforcement of any provision of this chapter is not to be regarded as tantamount to repeal of that provision.Nothing in this article prohibits the sale, use, prescription, or administration of a drug, device, or chemical that is designed for contraceptive purposes.
(B) If the United States Supreme Court issues a decision overruling Roe v. Wade, 410 U.S. 113 (1973), any other court issues an order or judgment restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, or an amendment is ratified to the Constitution of the United States restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, then the Attorney General may apply to the pertinent state or federal court for either or both of the following:
(1) a declaration that any one or more of the statutory provisions specified in subsection (A) are constitutional; or
(2) a judgment or order lifting an injunction against the enforcement of any one or more of the statutory provisions specified in subsection (A).
(C) If the Attorney General fails to apply for relief pursuant to subsection (B) within a thirty-day period after an event described in that subsection occurs, then any solicitor may apply to the appropriate state or federal court for such relief.
Section 44-41-625. (A) A physician may perform, induce, or attempt to perform or induce an abortion on a minor who successfully petitions the court for an order granting her the right to obtain an abortion without the consent required in Section 44-41-31(1), and the probable gestational age of the unborn child is not more than twelve weeks, or upon the final disposition of the petition, whichever occurs later.
(B) A physician may perform, induce, or attempt to perform or induce an abortion on a minor upon receiving consent that is obtained in accordance with Section 44-41-31(1), and the probable gestational age of the unborn child is not more than twelve weeks.
Section 44-41-630. (A) An abortion provider who is to perform or induce an abortion, a certified technician, or another agent of the abortion provider who is competent in ultrasonography shall:
(1) perform an obstetric ultrasound on the pregnant woman, using whichever method the physician and pregnant woman agree is best under the circumstances;
(2) during the performance of the ultrasound, display the ultrasound images so that the pregnant woman may view the images; and
(3) record a written medical description of the ultrasound images of the unborn child’s fetal heartbeat, if present and viewable.
(B) Except as provided in Section 44-41-650 or 44-41-660, no person shall perform, induce, or attempt to perform or induce an abortion on a pregnant woman before the determination is made pursuant to subsection (A) whether the unborn child the pregnant woman is carrying has a detectable heartbeat. It is not a violation of this subsection if the requirements contained in subsection (A) have been satisfied and the method used to test for the presence of a fetal heartbeat does not reveal a fetal heartbeat. A person who violates this subsection is guilty of a felony and, upon conviction, must be fined ten thousand dollars, imprisoned for not more than two years, or both.
Section 44-41-640. If a pregnancy is at least eight weeks after fertilization, then the abortion provider who is to perform or induce an abortion, or an agent of the abortion provider, shall tell the woman that it may be possible to make the embryonic or fetal heartbeat of the unborn child audible for the pregnant woman to hear and shall ask the woman if she would like to hear the heartbeat. If the woman would like to hear the heartbeat, then the abortion provider shall, using whichever method the physician and patient agree is best under the circumstances, make the fetal heartbeat of the unborn child audible for the pregnant woman to hear.(A) Except as provided in subsection (B), Section 44-41-650, and Section 44-41-660, no person shall perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the unborn child the pregnant woman is carrying if the unborn child’s fetal heartbeat has been detected in accordance with Section 44-41-630.
(B) A physician may perform, induce, or attempt to perform or induce an abortion on a pregnant woman after the fetal heartbeat has been detected in accordance with Section 44-41-630 if:
(1) the pregnancy is the result of rape, and the probable gestational age of the unborn child is not more than twelve weeks; or
(2) the pregnancy is the result of incest, and the probable gestational age of the unborn child is not more than twelve weeks.
(C) A physician who performs or induces an abortion on a pregnant woman based on an exception contained in subsection (B) must report the allegation of rape or incest to the sheriff in the county in which the abortion was performed. The report must be made no later than twenty-four hours after performing or inducing the abortion, may be made orally or otherwise, and shall include the name and contact information of the pregnant woman making the allegation. Prior to performing or inducing an abortion, the physician who performs or induces an abortion based on an allegation of rape or incest must notify the pregnant woman that the physician will report the allegation of rape or incest to the sheriff. The physician shall make written notations in the pregnant woman’s medical records that the abortion was performed pursuant to the applicable exception, that the doctor notified the sheriff of the allegation of rape or incest in a timely manner, and that the woman was notified prior to the abortion that the physician would notify the sheriff of the allegation of rape or incest.
(D) A person who violates this section is guilty of a felony and, upon conviction, must be fined ten thousand dollars, imprisoned for not more than two years, or both.
Section 44-41-650. (A) Except as provided in Section 44-41-660, no person shall perform, induce, or attempt to perform or induce an abortion on a pregnant woman before a physician determines in accordance with Section 44-41-630 whether the human fetus the pregnant woman is carrying has a detectable fetal heartbeat.It is not a violation of Section 44-41-640 if an abortion is performed or induced on a pregnant woman due to the existence of a fatal fetal anomaly. Section 44-41-630(B) does not apply to a physician who performs or induces an abortion if the physician determines according to standard medical practice that there exists a fatal fetal anomaly.
(B) A person who violates subsection (A) is guilty of a felony and, upon conviction, must be fined ten thousand dollars, imprisoned not more than two years, or both.A physician who performs or induces an abortion based upon the existence of a fatal fetal anomaly shall make written notations in the pregnant woman’s medical records of:
(1) the presence of a fatal fetal anomaly;
(2) the nature of the fatal fetal anomaly;
(3) the medical rationale for making the determination that with or without the provision of life-preserving treatment life after birth would be unsustainable.
(C) For at least seven years from the date the notations are made in the woman’s medical records, the physician, if he is the owner of the pregnant woman’s medical records, shall maintain a copy of the notations in his own records.
(D) A physician, if he is the owner of the pregnant woman’s medical records, who violates subsection (B) or (C) is guilty of a felony and, upon conviction, must be fined ten thousand dollars, imprisoned for not more than two years, or both.
(E) Entities other than an individual physician with ownership of the pregnant woman’s medical records that violate subsection (B) or (C) must be fined fifty thousand dollars.
Section 44-41-660. (A) It is not a violation of Section 44-41-640 if an abortion is performed or induced on a pregnant woman due to a medical emergency. Section 44-41-65044-41-630(B) does not apply to a physician who performs or induces an abortion if the physician determines according to standard medical practice that a medical emergency exists that prevents compliance with the section.
(B) A physician who performs or induces an abortion on a pregnant woman based on the exception in subsection (A) shall make written notations in the pregnant woman’s medical records of the following:
(1) the physician’s belief that a medical emergency necessitating the abortion existed;
(2) the medical condition of the pregnant woman that assertedly prevented compliance with Section 44-41-65044-41-630(B); and
(3) the medical rationale to support the physician’s conclusion that the pregnant woman’s medical condition necessitated the immediate abortion of her pregnancy to avert her death.
(C) For at least seven years from the date the notations are made in the pregnant woman’s medical records, the physician shall maintain a copy of the notations in his own records a copy of the notations.
(D) A person who violates subsection (B) or (C) is guilty of a felony and must fined ten thousand dollars, imprisoned for not more than two years, or both.
Section 44-41-670. A physician is not in violation of Section 44-41-650 if the physician acts in accordance with Section 44-41-630 and the method used to test for the presence of a fetal heartbeat does not reveal a fetal heartbeat.
Section 44-41-680. (A) Except as provided in subsection (B), no person shall perform, induce, or attempt to perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the human fetus the pregnant woman is carrying and whose fetal heartbeat has been detected in accordance with Section 44-41-630.
(B) A physician may perform, induce, or attempt to perform or induce an abortion on a pregnant woman after a fetal heartbeat has been detected in accordance with Section 44-41-630 only if:
(1) the pregnancy is the result of rape, and the probable post-fertilization age of the fetus is fewer than twenty weeks;
(2) the pregnancy is the result of incest, and the probable post-fertilization age of the fetus is fewer than twenty weeks;
(3) the physician is acting in accordance with Section 44-41-690; or
(4) there exists a fetal anomaly, as defined in Section 44-41-430.
(C) A physician who performs or induces an abortion on a pregnant woman based on the exception in either subsection (B)(1) or (2) must report the allegation of rape or incest to the sheriff in the county in which the abortion was performed. The report must be made no later than twenty-four hours after performing or inducing the abortion, may be made orally or otherwise, and shall include the name and contact information of the pregnant woman making the allegation. Prior to performing or inducing an abortion, a physician who performs or induces an abortion based upon an allegation of rape or incest must notify the pregnant woman that the physician will report the allegation of rape or incest to the sheriff. The physician shall make written notations in the pregnant woman’s medical records that the abortion was performed pursuant to the applicable exception, that the doctor timely notified the sheriff of the allegation of rape or incest, and that the woman was notified prior to the abortion that the physician would notify the sheriff of the allegation of rape or incest.
(D) A person who violates subsection (A) is guilty of a felony and, upon conviction, must be fined ten thousand dollars, imprisoned not more than two years, or both.
Section 44-41-69044-41-670. (A) Section 44-41-68044-41-640 does not apply to a physician who performs a medical procedure that, by any reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent the serious risk of a substantial and irreversible impairment of a major bodily function of the pregnant woman.
(B) A physician who performs a medical procedure as described in subsection (A) shall declare, in a written document, that the medical procedure was necessary, by reasonable medical judgment, to prevent the death of the pregnant woman or to prevent the serious risk of a substantial and irreversible physical impairment of a major bodily function of the pregnant woman. In the document, the physician shall specify the pregnant woman’s medical condition that the medical procedure was asserted to address and the medical rationale for the physician’s conclusion that the medical procedure was necessary to prevent the death of the pregnant woman or to prevent the serious risk of a substantial and irreversible impairment of a major bodily function of the pregnant woman.
(C) A physician who performs a medical procedure as described in subsection (A) shall place the written document required by subsection (B) in the pregnant woman’s medical records. For at least seven years from the date the document is created, if the physician is the owner of the pregnant woman’s medical records, the physician shall maintain a copy of the document in his own records.
(D) A physician, if he is the owner of the pregnant woman’s medical records, who violates subsection (B) or (C) is guilty of a felony and must be fined ten thousand dollars, imprisoned for not more than two years, or both.
(E) Entities other than an individual physician with ownership of the pregnant woman’s medical records that violate subsection (B) or (C) must be fined fifty thousand dollars.
Section 44-41-700. A physician is not in violation of Section 44-41-680 if the physician acts in accordance with Section 44-41-630 and the method used to test for the presence of a fetal heartbeat does not reveal a fetal heartbeat.
Section 44-41-710. This article must not be construed to repeal, by implication or otherwise, Section 44-41-20 or any otherwise applicable provision of South Carolina law regulating or restricting abortion. An abortion that complies with this article but violates the provisions of Section 44-41-20 or any otherwise applicable provision of South Carolina law must be considered unlawful as provided in such provision. An abortion that complies with the provisions of Section 44-41-20 or any otherwise applicable provision of South Carolina law regulating or restricting abortion but violates this article must be considered unlawful as provided in this article. If some or all of the provisions of this article are ever temporarily or permanently restrained or enjoined by judicial order, all other provisions of South Carolina law regulating or restricting abortion must be enforced as though such restrained or enjoined provisions had not been adopted; provided, however, that whenever such temporary or permanent restraining order or injunction is stayed or dissolved, or otherwise ceases to have effect, such provisions shall have full force and effect.
Section 44-41-720. Nothing in this article prohibits the sale, use, prescription, or administration of a drug, device, or chemical that is designed for contraceptive purposes.
Section 44-41-73044-41-680. A pregnant woman on whom an abortion is performed or induced in violation of this article may not be criminally prosecuted for violating any of the provisions of this article or for attempting to commit, conspiring to commit, or acting complicitly in committing a violation of any of the provisions of the article and is not subject to a civil or criminal penalty based on the abortion being performed or induced in violation of any of the provisions of this article.
Section 44-41-740.44-41-690. (A) A woman who meets any one or more of the following criteria may file a civil action in a court of competent jurisdiction:
(1) a woman on whom an abortion was performed or induced in violation of this article; or
(2) a woman on whom an abortion was performed or induced who was not given the information provided in Section 44-41-330.
(B) A woman who prevails in an action filed pursuant to subsection (A) shall receive the following from the person who committed the act or acts described in subsection (A):
(1) damages in an amount equal to ten thousand dollars or an amount determined by the trier of fact after consideration of the evidence; and
(2) court costs and reasonable attorney’s fees.
(C) If the defendant in an action filed pursuant to subsection (A) prevails and the court finds that the commencement of the action constitutes frivolous conduct and that the defendant was adversely affected by the frivolous conduct, then the court shall award reasonable attorney’s fees to the defendant; provided, however, that a conclusion of frivolousness cannot rest upon the unconstitutionality of the provision that was allegedly violated.
SECTION 2. SECTION 2 of Act 1 of 2021 is repealed.
SECTION 3. From Article 1, Chapter 41, Title 44, related to Abortions Generally, Section 44-41-10 and Section 44-41-20 are repealed.
SECTION 4. Article 5, Chapter 41, Title 44, related to the South Carolina Pain-Capable Unborn Child Protection Act, is repealed. However, if some or all of the provisions contained in SECTION 1 of this act are ever temporarily or permanently restrained or enjoined by judicial order, or are held to be unconstitutional or invalid, then all of the provisions of Article 5, Chapter 41, Title 44 are reenacted retroactively to the date the judicial order either temporarily or permanently restraining or enjoining some or all of the provisions contained in SECTION 1 or declaring some or all of the provisions contained in SECTION 1 unconstitutional or invalid is entered.
