Abortion and South Carolina law: more legislation, fewer procedures in 'butter' state

COLUMBIA – In Red State South Carolina, it surprises few political observers that the state Senate has two anti-abortion bills pending on its calendar, one to grant legal rights to the unborn from the time of fertilization and the other to ban dismemberment-abortions.

Neither proposal is novel, in this state or elsewhere, and in a state where Republicans control the Statehouse and the governor’s mansion, many officeholders and office-seekers rush to show how conservative they are. A pro-life stance and support of anti-abortion legislation is expected.

What happens to the bills, their journeys, the strategies and the results, however, is not always so apparent.

Last October Republican Gov. Henry McMaster ordered state agencies to cease funding of any medical practice affiliated with an abortion clinic. He also promised to sign the fertilization bill that would outlaw most abortions if passed by the Legislature. The bill was authored last year by Lt. Gov. Kevin Bryant of Anderson, another gubernatorial candidate. 

Gubernatorial challenger Catherine Templeton said this year she would sign any bill leading to fewer abortions, including the fertilization bill.

Asked about exceptions for rape or incest, Templeton responded, “God decides the circumstances under which we come to this world, and I don’t think it is for us to stop him in his tracks.”

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The positions of McMaster and Templeton are reflected in the Legislature, where bills are filed each session placing more restrictions on abortions to the applause of pro-life groups. Since 1999, state lawmakers have filed more than 100 bills related to abortion, legislative records show, though only a handful have passed.

Fewer abortions

Almost all of the bills filed are anti-abortion, spawning passionate speeches, emotional hearings and pro-life credentials that many Republicans prize.

A pro-life group credits the passed legislation with saving 165,000 babies.

“Are we a pro-life Legislature and a pro-life state? I think we are,” said Sen. Larry Grooms, a Berkeley County Republican and author of several anti-abortion bills over the years. “As a legislator I believe I am compelled to do everything I can within the framework of the law to protect the life of unborn children.”

But Sen. Brad Hutto, an Orangeburg Democrat and ardent foe of pro-life bills, isn’t so sure the state or its representatives are as anti-abortion as some believe.

“I believe a majority of legislators self-describe as pro-life,” he said. “A lot of them will tell me that ‘My wife and I have talked about this a lot and she doesn’t want me to be too outfront on this, but for my political office I’m pro-life.'”

Sen. Shane Martin, a Spartanburg County Republican who has sponsored several anti-abortion bills over the years, has a name for the process of lawmakers who pretend to be pro-life.

“South Carolina is a pro-life ‘butter’ state,” he said. “We have plenty of politicians who claim a pro-life stance who, almost always, attach a ‘but’ to it. They say, ‘I'm pro-life, but this is unconstitutional’, or ‘I'm pro-life, but there are unintended consequences,’ or my favorite, ‘I'm pro-life, but we don't have the votes for (stopping debate).’ Perhaps someday we'll leave off the butter and just save some children.”

Vicky Ringer, a spokeswoman for Planned Parenthood in South Carolina, said she does not believe most of the state is anti-abortion, citing a University of South Carolina poll in which 84 percent of respondents said they favor having safe and legal abortion available for at least some cases.

While conceding that some lawmakers have earnest convictions to oppose abortion, she thinks Republican opposition is largely driven by party platform.

“We’ve seen the rise of anti-abortion bills with the rise of the tea party, which is the ultra-conservative wing of the Republican party,” she said. “That is what has resulted in so many of these bills.”

According to the South Carolina Citizens For Life, the state’s major pro-life group, the peak of abortion in the state occurred in 1988 with 14,183 procedures. In 2016 there were fewer than 6,000. Nationally, according to the CDC, abortions dropped 21 percent from 2005 to 2014.

Ringer, who prefers the term anti-abortion to pro-life, said assertions that legislation in the state has resulted in dramatic drops in abortion are “ridiculous,” arguing that the major factor in the abortion drop is greater access to birth control. If anti-abortion groups want to make an impact, she said, they should work to provide better jobs and pay for women and provide better health care. She said a portion of women choosing abortion do so because they cannot afford another child.

“The restrictions on abortion have done nothing to lower abortion,” she said.

Money doesn't matter much

Those on both sides of the abortion debate agree that, unlike other issues, money does not influence lawmakers’ decisions. Citizens for Life, records show, has made only one campaign donation for a legislative candidate, in 2008. Planned Parenthood has made 21 contributions for 12 lawmakers or legislative candidates, records show.

“I think what persuades people is their moral conviction,” said Holly Gatling, executive director for S.C. Citizens For Life.

Some pro-life lawmakers who've filed bills to add abortion restrictions hope one day they'll eventually result in the U.S. Supreme Court overturning its landmark 1973 ruling on Roe v Wade.

Many of the bills are copies of bills in the other chamber. Some are bills that failed to pass in one two-year legislative session so they are filed again. Many of them never make it to debates on the floor of either body but die in committee.

In 2000, for instance, there was a House bill to create a monument on the Statehouse grounds for unborn children. It was referred to committee and died there.

In 2003 a House bill proposed a referendum be held to ask voters if they favored amending the U.S. Constitution to allow states to ban abortion. It also died in committee. Proponents tried again the following legislative sessions but suffered the same fate.

In 2005 a Senate bill proposed issuing “Choose Life” license plates to benefit the S.C. Citizens For Life and “Choose Death” to pay for trauma counseling for women who had abortions. The Choose Life plates several years earlier had sparked a protracted court battle. The 2005 bill died in committee, though the pro-life plates were eventually approved after lawmakers changed rules on specialty plates to allow non-profits to directly apply to the state Department of Motor Vehicles to make specialty plates.

In 2007 a House bill proposed that health care providers or payers have a right not to participate in or pay for a health-care service such as abortion that violated their conscience. The bill died in committee.

In 2010 a Senate bill by Grooms proposed banning abortions except under certain medical conditions after 22 weeks. The bill died in committee though the idea continued until 2016, when lawmakers banned abortions when the fetus reached 20 weeks in age, the result of arguments that a fetus can feel pain at that age.

In 2013 a Senate bill proposed requiring abortion clinics to perform fetal heartbeat tests with ultrasound prior to any abortion, and it would've banned any abortion if a heartbeat were detected. The bill died in committee, though it was proposed the next legislative session.

Another Senate bill filed in 2013 would have required a doctor performing abortions outside a hospital to have hospital admitting and staff privileges. The bill died in committee.

The following year a bill was proposed in the Senate to prohibit employer funds in the State Health Plan from being used for abortions and to allow employees’ funds to be used only in cases of rape, incest or where the health of the mother is endangered. It also died in committee.

Among the bills that have been successful was the Unborn Victims of Violence Act in 2006, which recognized the unborn as victims if a violent crime killed or injured them.

In 2008 lawmakers required that when a woman underwent an ultrasound test prior to an abortion that she be asked if she wanted to see the image and that the procedure could not take place for at least an hour after the ultrasound test was complete.

In 2010 the Legislature passed a bill to require women wait at least 24 hours after an initial consultation before going through with an abortion.

In 2012 lawmakers passed bills to provide legal protection for fetuses who survive attempted abortion and also opted the state out of abortion coverage in the federal Affordable Care Act. The Born Alive bill had been passed three previous times by the House but not in the Senate.

Altogether, according to Citizens For Life, the state Legislature has passed at least 10 key anti-abortion bills since 1990.

“It’s always tough to get pro-life legislation passed even though we’ve been able to do it,” Gatling said, “because in the Senate, one senator can block legislation and you have to have 26 senators to overcome that one senator.”

She said pro-life bills have historically found easier paths in the House but then have to get through Senate committees and are objected to on the floor, often by Hutto.

Bipartisan efforts

Gatling said South Carolina is conservative and pro-life, and pro-life legislation is aided by Democrats, not just Republicans.

“We could not get a single piece of legislation passed without pro-life Democrats,” she said. “It just goes to show that being pro-life is not a conservative issue or a liberal issue; it’s a human issue, and that’s why we get bipartisan support.”

Hutto said the state does not lead the nation in anti-abortion legislation, though it has many of the same types of restrictions that other states have. He said one reason there are so many bills is that anti-abortions groups hire people to promote the issue. 

Erik Corcoran, director of a pastor coalition for the Palmetto Family Council, said he believes one reason for the continued anti-abortion bills is that many legislators “still go to church.”

“When it comes right down to it, it is not a partisan issue,” he said. “It’s life and death. I think at the core of South Carolina legislators, they know what’s right from wrong.”

He said groups such as the American Civil Liberties Union have done a better job than conservatives in grass-roots efforts. He said pro-life groups should be patient.

“It’s not about getting it done overnight,” he said. “It’s about doing it right methodically, fighting until one day abortion is no longer legal in South Carolina or the country.”

That’s not to say that there are not differences of opinion within the pro-life community.  The fertilization bill, for instance, called the Personhood bill, is not a priority for Gatling’s organization.

Gatling said the dismemberment ban “is almost across the finish line.” She said the Personhood bill still has to get through the House even if it passes the Senate.

“It’s not something I can comment on,” she said of the Personhood bill, “because our legislative priority is to stop the dismemberment abortions.”

Corcoran said another organization is more focused on the Personhood bill, though his group is not opposed to it.

“Any bill that is against abortion, we’re in support of,” he said. “We may at times have different objectives and strategies, so we’re really pushing dismantling dismemberment-abortion, whereas they are pushing ending it tomorrow, so to speak.”

Grooms said some in the pro-life community “believe the state of South Carolina can pass legislation that can overturn Roe v Wade.”

“They are critical of others in the pro-life community because abortion is still legal in South Carolina,” he said. “They fail to recognize the U.S. Constitution and the federal judges that interpret it. I believe our state has done everything it can to reduce abortion through various pieces of legislation that fit within the confines of what is allowed under current federal case law.”

He said, for instance, that he filed a bill years ago to ban abortions at 24 weeks based on case law then. When he read another case in which the federal courts upheld 20 weeks, he filed that bill, which took six years to pass.

“I remember before it passed there was a group of pastors and other pro-life folks who met in the lobby of the Statehouse,” Grooms said. “And they actually called the bill an ‘abomination,’ that those who support banning abortions after 20 weeks aren’t doing anything.”

He said that group has continued to grow, but “they fail to recognize the supremacy of the federal courts in dictating what can and cannot be put into place.”

The real results

Grooms said if a Personhood bill is passed, which he supports, it would not go into effect because a federal injunction would be granted. He said the state would then have to defend its position and that case could make it to the U.S. Supreme Court and could possibly overturn Roe v Wade.

“But I also believe there are other pieces of legislation that could serve as the test case to overturn Roe v Wade that would be an easier path,” he said, mentioning another’s state’s ban on abortion at 15 weeks.

Grooms said what he knows is that if Planned Parenthood challenges a law and the state loses in court, it must pay all of Planned Parenthood’s legal fees. Some are critical of the Personhood bill, he said, because it may ultimately not become law and also result in the payment of legal funds to Planned Parenthood.

Hutto said he is not convinced that either bill now on the Senate calendar will pass, with so few weeks left until adjournment. He said he thinks the Personhood bill “is fraught with problems” and the possibility of litigation.

“Beyond that, it outlaws birth control, it outlaws the morning after pill, it outlaws in-vitro fertilization,” he said. "It’s so expansive that it goes way beyond what they say they are attempting to do.”

He said the dismemberment bill, like the 20-week law, applies to a sliver of abortion cases, about 1 percent, according to the Centers For Disease Control.

“Most people, 90 percent, at 20 weeks are committed to carrying the child to term,” he said. “They want the baby. Something happens to cause them to change their mind, such as they get a horrible report back from the ultrasound or the mom has a terrible health issue come up and her life is in danger. “

He said in such instances new information suggests that the pregnancy is incompatible with life or incompatible with the mom’s life. He said dismemberment comes up only after 20 weeks and such cases are handled in hospitals, not in one of the state’s three abortion clinics.

"My complaint is that they are so fervent to challenge this in court that they miss the human side of what’s going on in real families’ lives because they don’t want to hear the logic of it,” he said. “They are focused on the outcome without dealing with the realities, the complications of people’s everyday lives and the doctors who are trying to provide quality health-care which the people of South Carolina deserve.”