In its first response to the Supreme Court's decision overturning Roe v. Wade, white male Republicans in the South Carolina Assembly behaved as recklessly as predicted.
Late on August 30 they passed a law that permits abortion within the first 12 weeks of pregnancy only in cases of rape and incest. Physicians must report the crime of rape or incest to local authorities. This will expose the woman to all the uncertainties and indignities of the criminal justice process.
The law also permits abortion to avert the death of the pregnant woman or her "substantial physical impairment." However, physicians cannot consider "psychological or emotional conditions" created by the pregnancy as legal grounds for an abortion.
Republicans then pretended to be physicians and specified a number of medical conditions that, in their expert opinion, constitute a "substantial risk" to the health of the mother. These include "ectopic pregnancy, severe preeclampsia, abrupt placentae, and eight other conditions. But they also warn physicians to do everything possible to save the life of the child.
Given these intrusions into the practice of medicine, the prudent South Carolina physician will be thinking long and hard about how to intervene if a woman is experiencing a difficult pregnancy. A lawyer and prosecutor will be lurking in every examination room and hovering over every operating table.
Two Republican sponsors of this bill--Chris Murphy, the Chair of the House Judiciary Committee, and the newly-elected Robby Robbins--will have to defend it in November, and probably in every election cycle until they are defeated. Murphy is being opposed by Sydney Clinton in AD 98. Robbins is being opposed by ReZsaun Lewis in AD 97. If Democrats and sensible Republicans ever needed a reason to bounce Murphy and Robbins and support Clinton and Lewis, this bill is it.
In their rush to pass this law and send it to the State Senate, Assembly Republicans clearly chose to ignore Kansas.
As everyone who follows the abortion debate knows by now, voters in Kansas, by a resounding margin of 59% to 41%, told the Kansas legislature to keep its hands off the state's women.
In 2019, the Kansas Supreme Court ruled that the privacy clause in the Kansas Constitution provides a woman with "the right to make decisions about her body, including the decision whether to continue her pregnancy."
Anti-abortion legislators in Kansas--clearly cousins of our Assembly Republicans-- didn't like that interpretation, so they put the issue to voters in a referendum. They hoped to remove abortion rights from constitutional protection and permit only the Legislature to decide the question. It was a naked grab for power over women. A huge turnout of eligible voters (47%) said "NO" and left the constitutional protection in place. As a result, women in Kansas can legally choose to have an abortion up to 22 weeks of pregnancy.
After the Labor Day holiday, the South Carolina Senate and our superannuated Governor Henry McMaster will consider the abortion issue. They could, of course, first ask South Carolina voters what they think about the right to abortion. It would take a two-thirds vote of the Legislature to put such a referendum on a future ballot. But they won't do it.
Why? Because they know a woman's right to control her reproductive health is just as popular in South Carolina as in Kansas. Voters here would reject the Assembly's shameful legislation. Polling data is available to State Senators and the Governor, and they should consult it:
The Public Policy Polling firm in Raleigh, NC reported in July that 63% of South Carolinians believe women should have access to all reproductive health care options; 61% believe abortion should be legal in South Carolina; 75% believe women should make their own health care decisions; and 69% believe the decision whether or not to have an abortion should be left to the woman and her doctor, as opposed to state lawmakers (emphasis added).
The white, male, aging Republican members of the Assembly simply ignored the will of the people. Perhaps the State Senate will produce a slightly better bill after Labor Day. But real relief can come in only three ways.
First, the State Supreme Court could uphold a woman's right to control her own reproductive freedom under Section 10 of the State Constitution. It prohibits any "unreasonable invasions of privacy." The Court, on August 17, already stayed the law banning abortion in South Carolina at the first detection of a fetal heartbeat. The Court will be forced to reconcile privacy rights in the State Constitution with any abortion bill McMaster eventually signs.
Second, Section 2 of the State Constitution provides that the legislature "shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Many religions do not view abortion as does the Republican Assembly theocracy in this state.
For example, the United Church of Christ, the Unitarian Universalist Association, and Reform and Conservative Judaism favor a woman's right to have an abortion with few exceptions. The Episcopal and Presbyterian Church support some abortion rights, with limitations. Islam lacks a single authority to decide this issue and has no public position on abortion. Atheists and agnostics have their own views, which ought not be dictated by the state, given the establishment clause.
So perhaps the South Carolina Supreme Court will strike down the final abortion law on both religious freedom and privacy grounds.