Indicates Matter Stricken

Indicates New Matter

 

Amended

April 25, 2023

H. 3774

Introduced by Reps. McCravy, G. M. Smith, Hiott, W. Newton, Pope, Yow, M. M. Smith, Hardee, J. E. Johnson, Hixon, Bustos, Erickson, Landing, Davis, Crawford, B. L. Cox, Connell, Vaughan, Ligon, T. Moore, Moss, Lawson, Hyde, Leber, B. J. Cox, Wooten, Whitmire, Long, Gagnon, Bradley, Herbkersman, Nutt, Mitchell, B. Newton, Jordan, Brewer, Murphy, Gilliam, Willis, Blackwell, Elliott, Guest, Oremus, Felder, Chapman, Haddon, S. Jones, Pace, Gibson, Robbins, Burns, Chumley and Forrest

 

S. Printed 04/25/23--S.                                                                        [SEC 4/26/2023 11:57 AM]

Read the first time February 16, 2023

 

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A bill

 

to amend the South Carolina Code of Laws by enacting the "Human Life Protection Act"; by adding article 7 to Chapter 41, Title 44 so as to ban abortions in this State, to provide for exceptions to the ban on abortions, to protect the use of contraceptives and alternative reproductive technologies, to provide penalties, to provide a civil cause of action for failure to comply with the requirements of this article, to provide that a woman cannot be prosecuted for having an abortion, to provide that physicians or other licensed professionals shall lose their license for violations of this article, and to provide that a woman's name may remain anonymous in proceedings initiated pursuant to this article; by adding Section 44-41-90 so as to provide that the State Health Insurance Program may not pay for abortions, to prohibit state funds from being used for the purchase of fetal tissue or fetal remains obtained from an abortion, and to defund planned parenthood; by adding Section 63-17-325 so as to require a biological father to pay child support beginning at conception; by adding Section 38-71-146 so as to require all individual and group health insurance and HMO policies to cover contraceptives; by requiring the south carolina public employee benefit authority to cover prescribed contraceptives for dependents; by amending Section 44-41-710, relating to Construction and application of this article, so as to remove language related to implicit repeal; by amending Section 44-41-480, relating to Construction against implicit repeal of existing law, so as to remove language related to implicit repeal; by repealing section 44-41-20 relating to legal abortions; by amending Section 44-41-70, relating to Promulgation of rules and regulations for certification of hospitals and other facilities, so as to delete a reference to section 44-41-20; and by providing an unconditional right to intervene in challenges to this act by the President of the Senate and the Speaker of the House of Representatives.

    Amend Title To Conform

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  This act may be cited as the "Human Life Protection Act".

 

SECTION 2.  Chapter 41, Title 44 of the S.C. Code is amended by adding:

 

    Article 7

 

    Human Life Protection Act

 

    Section 44-41-810. For the purposes of this article:

    (1) "Abortion" means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn human being. Such use, prescription, or means is not an abortion if done with the intent to save the life or preserve the health of the unborn human being, or to remove a dead unborn human being.

    (2) "Clinically diagnosable pregnancy" means the point in time when it is possible to determine that a woman is pregnant due to the detectible presence of human chorionic gonadotropin (hCG).

    (3) "Female" means a biological female assigned at the time of birth or an intersexed person capable of producing an ovum at birth.

    (4) "Fatal fetal anomaly" means that, in reasonable medical judgment, an 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.

    (5) "Physician" means any person licensed in this State to practice medicine and surgery, or licensed osteopathic medicine and surgery.

    (6) "Pregnant woman" means the human biological female reproductive condition of having a living unborn child within her body, whether or not she has reached the age of majority.

    (7) "Selective reduction" means, in the context of assisted reproductive technology, a procedure to stop the development of one or more unborn children in utero.

    (8) "Rape" has the same meaning as criminal sexual conduct, regardless of the degree of criminal sexual conduct.

    (9) "Reasonable medical judgement" means a medical judgement that would made by a reasonably prudent physician, knowledgeable about the case and treatment possibilities with respect to the medical condition involved.

    (10) "Unborn child" means an individual organism of the species homo sapiens from conception until live birth.

 

    Section 44-41-820. (A)  No person shall knowingly administer to, prescribe for, deliver to, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing an abortion.

    (B) No person may knowingly use or employ any instrument, device means or procedure upon a pregnant woman with the specific intent of causing an abortion.

 

    Section 44-41-830. (A)(1) A physician may perform, induce, or attempt to perform or induce an abortion on a pregnant woman if:

           (a) the pregnancy is the result of rape or incest and the abortion or attempted abortion is performed or induced during the first trimester of the pregnancy; or

           (b) there exists a fatal fetal anomaly that has been confirmed by two physicians in separate medical practices who specialize in obstetrics or the area of medicine in which the fatal fetal anomaly is diagnosed.

       (2) A physician who performs or induces an abortion on a pregnant woman pursuant to subitem (1)(a) must report the allegation of rape or incest to the sheriff in the county in which the rape or incest occurred. The report must be made no later than twenty-four hours after performing or inducing the abortion. The report may be made orally or in writing and must include the name and contact information of the pregnant woman making the allegation. Prior to performing or inducing the abortion, the physician who will perform or induce the 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 in the county where the rape or incest occurred. 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 physician timely notified the appropriate 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. The physician shall preserve a DNA sample from the fetal remains and notify the Sheriff that the DNA sample has been preserved. The Sheriff shall collect the DNA sample from the physician and shall hold the DNA sample as evidence within ninety days of receiving notice from the physician. The DNA sample shall be held as evidence as provided by the Preservation of Evidence Act.

    (B)(1) It is not a violation of Section 44-41-820 for a physician to perform a medical procedure necessary in his reasonable medical judgment to prevent the death of a pregnant woman, a substantial risk of death of a pregnant woman due to a physical condition, or the substantial physical impairment of a major bodily function of the pregnant woman, not including psychological or emotional conditions.

       (2) It is presumed that the following medical conditions constitute a substantial risk of death or substantial risk of substantial physical impairment of a major bodily function of a pregnant woman: molar pregnancy, partial molar pregnancy, blighted ovum, ectopic pregnancy, severe preeclampsia, HELLP syndrome, abruptio placentae, severe physical maternal trauma, uterine rupture, intrauterine fetal demise, and miscarriage. However, when an unborn child is alive in utero, the physician must make all reasonable efforts to deliver and save the life of an unborn child during the process of separating the unborn child from the pregnant woman, to the extent that it does not adversely affect the life or physical health of the pregnant woman, and in a manner that is consistent with reasonable medical practice. The enumeration of the medical conditions in this item is not intended to exclude or abrogate other conditions that satisfy the exclusions contained in item (1) or prevent other procedures that are not included in the definition of abortion.

       (3) A physician performing a medical procedure pursuant to item (1) shall make reasonable medical efforts under the circumstances to preserve the life of the pregnant woman's unborn child, to the extent that it does not substantially risk the death or physical impairment of a major bodily function of the pregnant woman, not including psychological or emotional conditions and in a manner consistent with reasonable medical practices. A medical procedure shall not be considered necessary if it is performed based upon a claim or diagnosis that the woman will engage in conduct that she intends to result in her death or in a substantial physical impairment of a major bodily function.

       (4) A physician who performs a medical procedure pursuant to item (1) shall declare, in a written document maintained with the woman's medical records, that the medical procedure was necessary, the woman's medical condition necessitating the procedure, the physician's rationale for his conclusion that the procedure was necessary, and that all reasonable efforts were made to save the unborn child in the event it was living prior to the procedure. The declaration required by this item must be placed in the woman's medical records not later than thirty days after the procedure was completed. A physician's exercise of reasonable medical judgment in relation to a medical procedure undertaken pursuant to this subsection is presumed to be within the applicable standard of care.

    (C) Medical treatment provided to a pregnant woman by a physician which results in the accidental or unintentional injury or death of her unborn child is not a violation of Section 44-41-820.

    (D)(1) It is not a violation of Section 44-41-820 to use, sell, or administer a contraceptive measure, drug, chemical, or device if the contraceptive measure, drug, chemical, or device is used, sold, prescribed or administered in accordance with manufacturer's instructions and is not used, sold, prescribed or administered to cause or induce an abortion.

       (2) It is not a violation of Section 44-41-820 to use, sell, prescribe, and insert an intrauterine device if the intrauterine device is used, sold, inserted, and prescribed within the reasonable medical judgment of a physician and is not used, sold, prescribed, or administered to cause or induce an abortion of an unborn human being.

       (3) It is not a violation of Section 44-41-820 to use, sell, prescribe, and administer an emergency contraceptive drug designed to be taken within five days of unprotected sex and used according to the manufacturer's instructions. For purposes of this item, an emergency contraceptive drug does not include mifepristone or misoprostol.

    (E)(1) Except as provided in item (2), it is not a violation of Section 44-41-820 to perform or undergo assistive reproductive technology, including but not limited to in vitro fertilization, within the accepted standards of care by the reproductive medical community.

       (2) Performing selective reduction is a violation of Section 44-41-820 unless it is necessary within reasonable medical judgment to prevent a substantial risk of death or a substantial and irreversible physical impairment of a major bodily function of another unborn child.

 

    Section 44-41-840. (A)  A person who violates Section 44-41-820 is guilty of a felony and, upon conviction, must be fined ten thousand dollars or imprisoned for not more than two years, or both.

    (B) A person who uses force, or the threat of force, to intentionally injure or intimidate another person for the purpose of coercing an abortion in violation of Section 44-41-820 is guilty of a felony and, upon conviction, must be fined ten thousand dollars or imprisoned for not more than two years, or both.

    (C) A person who is not a physician as defined in this article and who prescribes any means of abortion for the purpose of facilitating an abortion within this State violates Section 44-41-820 and, upon conviction, is guilty of a felony and must be fined ten thousand dollars or imprisoned for two years, or both.

 

    Section 44-41-850. (A)  In addition to all other remedies available under common or statutory law, failure to comply with the requirements of this article shall provide the basis for a civil action further described in this section.

    (B) A pregnant woman upon whom an abortion has been performed, induced, or coerced in violation of this article may maintain an action against the person who violated this article for actual and punitive damages. In addition to all other damages, and separate and distinct from all other damages, a plaintiff is entitled to statutory damages of ten thousand dollars for each violation of this article to be imposed on each defendant found to have violated this article.

    (C) A separate and distinct cause of action for injunctive relief against any person who has violated this article may be maintained by:

       (1) the woman upon whom the abortion was performed or induced in violation of this article;

       (2) the parent or guardian of the pregnant woman if she had not attained the age of eighteen years at the time of the abortion or died as a result of the abortion;

       (3) a solicitor or prosecuting attorney with proper jurisdiction; or

       (4) the Attorney General.

    (D) If a plaintiff prevails in an action initiated pursuant to this section the court shall award the plaintiff reasonable costs and attorney's fees.

    (E) No damages, costs, or attorney's fees may be assessed against the woman upon whom an abortion was performed or induced.

    (F) Under no circumstances may civil damages be awarded to a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct.

    (G) A civil cause of action pursuant to this section must be brought within three years of the date of the abortion and is not subject to the limitations and requirements contained in Chapter 79, Title 15.

 

    Section 44-41-860. A pregnant woman upon whom an abortion is performed or induced in violation of this article may not be criminally prosecuted or found civilly liable 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 for this article.

 

    Section 44-41-870. In addition to any other penalties imposed by law, a physician or any other professionally licensed person who intentionally, knowingly, or recklessly violates the prohibition on abortion contained in this article commits an act of unprofessional conduct. A physician's license to practice in this State immediately shall be revoked by the State Board of Medical Examiners, after due process according to the board's rules and procedures. Any other licensed person's professional license shall be immediately revoked by the appropriate licensing board, after due process according to that board's rules and procedures. A complaint may be originated by any person or by the board sua sponte. A licensing board acting pursuant to this section may assess costs of the investigation, fines, and other disciplinary actions as it may deem appropriate.

 

    Section 44-41-880. In every civil or criminal proceeding or other action brought pursuant to this article, the court shall rule whether the anonymity of any woman upon whom an abortion has been performed or induced shall be preserved from public disclosure if the woman does not give consent to disclosure. The court, by motion or sua sponte, shall make a ruling and, upon determining that the woman's anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings that explain why the woman's anonymity is being preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable lest restrictive alternative exists. In the absence of the woman's written consent, any person, other than a public official, who brings an action pursuant to Section 44-41-820 shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.

 

    Section 44-41-890. 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, lifted, dissolved, or otherwise ceases to have effect, the provisions of this article shall have full force and effect.

 

SECTION 3.  Article 1, Chapter 41, Title 44 of the S.C. Code is amended by adding:

 

    Section 44-41-90.  (A)  No funds appropriated by the State for employer contributions to the State Health Insurance Plan may be expended to reimburse the expenses of an abortion, except as provided in Sections 44-41-830, 44-41-840, and 44-41-850.

    (B) No funds appropriated or authorized by the State may be used by any political subdivision of the State to purchase fetal tissue obtained from an abortion or fetal remains, nor may any political subdivision of the State accept donated fetal remains.

    (C) No state funds may, directly or indirectly, be utilized by Planned Parenthood for abortions, abortion services or procedures, or administrative functions related to abortions.

 

SECTION 4.  Article 3, Chapter 17, Title 63 of the S.C. Code is amended by adding:

 

    Section 63-17-325. A biological father of a child has a duty to pay the mother of the child the following financial obligations beginning with the date of conception:

       (1) child support payment obligations in an amount determined pursuant to Section 63-17-470;

       (2) fifty percent of the mother's pregnancy expenses.

           (a) Any portion of a mother's pregnancy expenses paid by the mother or the biological father reduces that parent's fifty percent obligation regardless of when the mother or biological father pays the pregnancy expenses.

           (b) Pregnancy expenses must include fifty percent of the mother's insurance premiums that are not paid by her employer or governmental program beginning from the date of conception and before the pregnancy ends, unless otherwise ordered by the court.

           (c) Item (2) does not apply if a court apportions pregnancy expenses as part of an award of child support in item (1).

    (B) In the case of a mother who becomes pregnant as a result of rape or incest, the biological father, in addition to the duties imposed by subsection (A), also is responsible for the full cost of any expenses incurred by the mother for mental health counseling arising out of the rape or incest.

    (C) The duties imposed by this section accrue at the time of conception and must be applied retroactively when paternity is contested and medical evidence establishes the paternity of the child. Interest accrues on any retroactive obligations beginning with conception until either the obligations are brought current or paid in full whichever happens first. The rate of interest must be calculated based on the applicable interest rate for money decrees and judgments in this State established annually by the South Carolina Supreme Court.

 

SECTION 5.  Article 1, Chapter 71, Title 38 of the S.C. Code is amended by adding:

 

    Section 38-71-146. All individual and group health insurance and health maintenance organization policies in this State shall include coverage for contraceptives. For purposes of this section, "contraceptive" means any drug, device, or medication to prevent pregnancy. A contraceptive may prevent ovulation, fertilization, or implantation in the uterus. A contraceptive does not include any drug, device, or medication used with the intent of terminating a pregnancy of a woman known to be pregnant. This section does not apply if an individual or entity asserts a sincerely held religious belief regarding the use of contraception.

 

SECTION 6.  The Public Employee Benefit Authority and the State Health Plan shall cover prescribed contraceptives for dependents under the same terms and conditions that the Plan provides contraceptive coverage for employees and spouses. The State Health Plan shall not apply patient cost sharing provisions to covered contraceptives.

 

SECTION 7.  Section 44-41-710 of the S.C. Code is amended to read:

 

    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 8.  Section 44-41-480 of the S.C. Code is amended to read:

 

    Section 44-41-480. 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 of injunction is stayed or dissolved, or otherwise ceases to have effect, such provisions shall have full force and effect.

 

SECTION 9.  Section 44-41-20 of the S.C. Code is repealed.

 

SECTION 10. Section 44-41-70(b) of the S.C. Code is amended to read:

 

    (b) The department shall promulgate and enforce regulations for the licensing and certification of facilities other than hospitals as defined in Section 44-41-10(d) wherein abortions are to be performed as provided for in Section 44-41-20(a) and (b).

 

SECTION 11. The President of the Senate, on behalf of the Senate, and the Speaker of the House of Representatives, on behalf of the House of Representatives have an unconditional right to intervene on behalf of their respective bodies in a state court action and may provide evidence or argument, written or oral, if a party to that court action challenges the constitutionality of this act. In a federal court action that challenges the constitutionality of this act the Legislature may seek to intervene, to file an amicus brief, or to present arguments in accordance with federal rules of procedure. Intervention by the Legislature pursuant to this provision does not limit the duty of the Attorney General to appear and prosecute legal actions or defend state agencies, officers or employees as otherwise provided. In any action in which the Legislature intervenes or participates, the Senate and the House of Representatives shall function independently from each other in the representation of their respective clients.

 

SECTION 12. Sections 44-41-32, 44-41-33, and 44-41-34 of the S.C. Code are repealed.

 

SECTION 13. Section 44-41-37 of the S.C. Code is amended to read:

 

    Section 44-41-37.  A physician or other professional person or agency counseling or discussing with a minor the question of her obtaining an abortion shall fully inform her of the procedures she must follow under law to obtain an abortion without the consent required in Section 44-41-31(1).

The Adoption and Birth Parent Services Division of the Department of Social Services shall develop and distribute brochures to health and education professionals for use in counseling pregnant minors.  This brochure shall include the following:

    (1) how to access her local health department for prenatal care;

    (2) how to access her local Adoption and Birth Parent Services Division of the Department of Social Services or any private not for profit adoption service;

    (3) the parental consent requirement as outlined in this bill; and

    (4) the judicial by-pass procedure as referred in Sections 44-41-32, 44-41-33, and 44-41-34;  and

    (5) how to access her local mental health center for counseling services.

 

SECTION 14. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 15. This act takes effect upon approval by the Governor.

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