A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ENACTING THE "HUMAN LIFE PROTECTION ACT" BY ADDING SECTION 44-41-615 SO AS TO PROHIBIT ALL ABORTIONS IN THE STATE OF SOUTH CAROLINA, WITH AN EXCEPTION FOR MEDICAL EMERGENCIES, AND TO ESTABLISH PENALTIES; BY ADDING SECTION 44-41-685 SO AS TO ADDRESS A WOMAN'S RIGHT TO ANONYMITY IN RELATED LEGAL PROCEEDINGS; BY AMENDING SECTIONS 44-41-610, 44-41-620, 44-41-630, AND 44-41-640, ALL RELATING TO THE "FETAL HEARTBEAT AND PROTECTION FROM ABORTION ACT," SO AS TO MAKE CONFORMING CHANGES AND TO ADDRESS ACCESS TO CONTRACEPTIVES AND ASSISTED REPRODUCTIVE TECHNOLOGIES; BY PROVIDING THE GENERAL ASSEMBLY THE RIGHT TO INTERVENE IN LEGAL CHALLENEGES TO THE ACT; BY AMENDING SECTION 44-41-37, RELATING TO ABORTION COUNSELING FOR MINORS, SO AS TO ELIMINATE REFERENCE TO A JUDICIAL BYPASS PROCEDURE; BY AMENDING SECTIONS 44-41-60 AND 44-41-90, RELATING TO REPORTING OF ABORTIONS AND PUBLIC FUNDING OF ABORTIONS RESPECTIVELY, SO AS TO MAKE CONFORMING CHANGES; BY REPEALING SECTIONS 44-41-32, 44-41-33, AND 44-41-34 RELATING TO A JUDICIAL BYPASS PROCEDURE FOR MINORS SEEKING AN ABORTION; BY REPEALING SECTIONS 44-41-650 AND 44-41-660 RELATING TO EXCEPTIONS FOR RAPE AND INCEST AND FOR FATAL FETAL ANOMALY RESPECTIVELY; AND TO RETITLE ARTICLE 6 OF CHAPTER 41, TITLE 44, AS THE "HUMAN LIFE PROTECTION ACT."

 

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.  Article 6, Chapter 41, Title 44 of the S.C. Code is amended by adding:

 

    Section 44-41-615. (A) Except as provided in Section 44-41-640, 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 to cause an abortion.

    (B) Except as provided in Section 44-41-640, 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.

    (C)(1) A person who violates subsection (A) or (B) is guilty of a felony and, upon conviction, must be fined ten thousand dollars or imprisoned for not more than two years, or both.

       (2) 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 subsection (A) or (B) is guilty of a felony and, upon conviction, must be fined ten thousand dollars or imprisoned for not more than two years, or both.

       (3) 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 subsection (A) or (B) and, upon conviction, is guilty of a felony and must be fined ten thousand dollars or imprisoned for two years, or both.

 

SECTION 3.  Article 6, Chapter 41, Title 44 of the S.C. Code is amended by adding:

 

    Section 44-41-685. 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 least 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 44-41-615 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 4.A.  Section 44-41-610 of the S.C. Code is amended by adding:

 

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

 

B. Section 44-41-610 (5) and (12) of the S.C. Code is amended to read:

 

    (5) "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 birthReserved.

 

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

 

SECTION 5.  Section 44-41-620 of the S.C. Code is amended to read:

 

    Section 44-41-620. An abortion may not be performed or induced without the voluntary and informed written consent of the pregnant woman or, in the case of incapacity to consent, the voluntary and informed written consent of her court-appointed guardian, and without compliance with the provisions of Section 44-41-330(A).

 

SECTION 6.  Section 44-41-630 of the S.C. Code is amended to read:

 

    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 44-41-640, 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 an abortion if the unborn child's fetal heartbeat has been detected in accordance with Section 44-41-330(A).  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 7.  Section 44-41-640 of the S.C. Code is amended to read:

 

    Section 44-41-640. (A) It is not a violation of Section 44-41-630Section 44-41-615 if an abortion is performed or induced on a pregnant woman due to a medical emergency or is performed 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, not including psychological or emotional conditions, of the pregnant woman.

    (B)(1) Section 44-41-630Section 44-41-615 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 or is performed to prevent the death of the pregnant woman or to prevent the serious risk of a substantial or irreversible impairment of a major bodily function, not including psychological or emotional conditions, that prevents compliance with the section.

       (2) A physician who performs or induces an abortion on a pregnant woman based on the exception in item (1) shall make written notations in the pregnant woman's medical records of the following:

           (a) the physician's belief that a medical emergency necessitating the abortion existed;

           (b) the medical condition of the pregnant woman that assertedly prevented compliance with Section 44-41-630Section 44-41-615; and

           (c) the medical rationale to support the physician's or person's conclusion that the pregnant woman's medical condition necessitated the immediate abortion of her pregnancy to avert her death and a medical emergency necessitating the abortion existed.

       (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 risk the death of the pregnant woman or the serious risk of a substantial and irreversible 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) For at least seven years from the date the notations are made in the pregnant woman's medical records, the physician owner of the pregnant woman's medical records shall maintain a record of the notations and in his own records a copy of the notations.

           (b) A person, if he is the owner of the pregnant woman's medical records, who violates this subsection is guilty of a felony and must be fined up to ten thousand dollars, imprisoned for not more than two years, or both.

           (c) An entity with ownership of the pregnant woman's medical records that violates item (3) must be fined up to fifty thousand dollars.

    (C)(1) It is not a violation of Section 44-41-630Section 44-41-615 for a physician to perform a medical procedure necessary in his reasonable medical judgment to prevent the death of a pregnant woman or the serious risk of a substantial and irreversible 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 risk of death or serious risk of a substantial and irreversible physical impairment of a major bodily function of a pregnant woman, not including psychological or emotional conditions: 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 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.

    (D) 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 44-41-630Section 44-41-615.

    (E)(1) It is not a violation of Section 44-41-630Section 44-41-615 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 44-41-615 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 44-41-615 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.

    (F)(1) Except as provided in item (2), it is not a violation of Section 44-41-615 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 44-41-615 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 8.  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 9.  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)(4) how to access her local mental health center for counseling services.

 

SECTION 10. Section 44-41-60 of the S.C. Code is amended to read:

 

    Section 44-41-60.  Any abortion performed in this State pursuant to Section 44-41-640 must be reported by the performing physician on the standard form for reporting abortions to the State Registrar, Department of Public Health and Environmental Control, within seven days after the abortion is performed.  The names of the patient and physician may not be reported on the form or otherwise disclosed to the State Registrar.  The form must indicate from whom consent was obtained, circumstances waiving consent, and, if an exception was exercised pursuant to Section 44-41-640, 44-41-650, or 44-41-660, which exception the physician relied upon in performing or inducing the abortion.

 

SECTION 11. Section 44-41-90(A) of the S.C. Code is amended to read:

 

    (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 SectionsSection 44-41-640, 44-41-650, and 44-41-660.

 

SECTION 12. Sections 44-41-32, 44-41-33, 44-41-34, 44-41-650, and 44-41-660 of the S.C. Code are repealed.

 

SECTION 13. Article 6, Chapter 41, Title 44 of the S.C. Code is retitled the "Human Life Protection Act."

 

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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