2011-2012 Bill 98: Abortion - South Carolina Legislature Online

1 South Carolina General Assembly 2 119th Session, 2011-2012 3 4 S. 98 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Senators Grooms, Verdin and Fair 10 Document Path: l:\s-res\lkg\009viab.kmm.lkg.docx 11 12 Introduced in the Senate on January 11, 2011 13 Currently residing in the Senate Committee on Medical Affairs 14 15 Summary: Abortion 16 17 18 HISTORY OF LEGISLATIVE ACTIONS 19 20 Date Body Action Description with journal page number 21 12/1/2010 Senate Prefiled 22 12/1/2010 Senate Referred to Committee on Medical Affairs 23 1/11/2011 Senate Introduced and read first time ( Senate Journalpage 45) 24 1/11/2011 Senate Referred to Committee on Medical Affairs ( Senate Journalpage 45) 25 26 27 VERSIONS OF THIS BILL 28 29 12/1/2010 30 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND SECTION 444110 OF THE 1976 CODE, 12 RELATING TO DEFINITIONS CONCERNING ABORTIONS, 13 TO REMOVE CERTAIN DEFINITIONS; TO AMEND 14 CHAPTER 41, TITLE 44, RELATING TO ABORTIONS, BY 15 ADDING SECTION 444115, TO PROVIDE FINDINGS 16 CONCERNING FETAL PAIN, FETAL VIABILITY, AND AN 17 ASSERTION OF THE STATE’S COMPELLING INTEREST IN 18 PROTECTING THE LIVES OF VIABLE UNBORN 19 CHILDREN; TO AMEND SECTION 444120, RELATING TO 20 WHEN AN ABORTION MAY LEGALLY BE PERFORMED, 21 TO PROVIDE THAT ABORTIONS PERFORMED PRIOR TO 22 THE END OF TWENTYTWO WEEKS AFTER CONCEPTION 23 REQUIRE A WOMAN’S INFORMED CONSENT, AND THAT 24 NO ABORTIONS MAY BE PERFORMED AFTER 25 TWENTYTWO WEEKS AFTER CONCEPTION UNLESS THE 26 WOMAN HAS A MEDICAL CONDITION WHICH, ON THE 27 BASIS OF THE PHYSICIAN’S GOOD FAITH JUDGMENT, SO 28 COMPLICATES A PREGNANCY AS TO NECESSITATE AN 29 IMMEDIATE ABORTION TO AVERT THE RISK OF HER 30 DEATH OR FOR WHICH A DELAY WILL CREATE SERIOUS 31 RISK OF SUBSTANTIAL AND IRREVERSIBLE 32 IMPAIRMENT OF MAJOR BODILY FUNCTION; TO AMEND 33 SECTION 4441320, RELATING TO DEFINITIONS 34 CONCERNING A WOMAN’S INFORMED CONSENT TO AN 35 ABORTION, TO DEFINE NECESSARY TERMS; TO AMEND 36 SECTION 4441330, RELATING TO A WOMAN’S INFORMED 37 CONSENT TO AN ABORTION, TO PROVIDE THAT A 38 WOMAN CHOOSING AN ABORTION IS INFORMED 39 CONCERNING FETAL PAIN; AND TO AMEND SECTION 40 4441340, RELATING TO INFORMATION THAT MUST BE 41 PROVIDED TO A WOMAN PRIOR TO AN ABORTION, TO

[98] 2 1 PROVIDE THAT THE INFORMATION MUST INCLUDE 2 MATERIAL CONCERNING FETAL PAIN. 3 4 Be it enacted by the General Assembly of the State of South 5 Carolina: 6 7 SECTION 1. Section 444110 of the 1976 Code is amended to 8 read: 9 10 “Section 444110. As used in this chapter: 11 (a)(1) ‘Abortion’ means the use of an instrument, medicine, 12 drug, or other substance or device with intent to terminate the 13 pregnancy of a woman known to be pregnant for reasons other 14 than to increase the probability of a live birth, to preserve the life 15 or health of the child after live birth, or to remove a dead fetus. 16 (b)(2) ‘Physician’ means a person licensed to practice medicine 17 in this State. 18 (c)(3) ‘Department’ means the South Carolina Department of 19 Health and Environmental Control. 20 (d)(4) ‘Hospital’ means those institutions licensed for hospital 21 operation by the department in accordance with Article 3, Chapter 22 7 of this title and which have also been certified by the department 23 to be suitable facilities for the performance of abortions. 24 (e)(5) ‘Clinic’ shall mean any facility other than a hospital as 25 defined in subsection (d) which has been licensed by the 26 department, and which has also been certified by the department to 27 be suitable for the performance of abortions. 28 (f)(6) ‘Pregnancy’ means the condition of a woman carrying a 29 fetus or embryo within her body as the result of conception. 30 (g)(7) ‘Conception’ means the fecundation of the ovum by the 31 spermatozoa. 32 (h)(8) ‘Consent’ means a signed and witnessed voluntary 33 agreement to the performance of an abortion. 34 (i) ‘First trimester of pregnancy’ means the first twelve weeks 35 of pregnancy commencing with conception rather than computed 36 on the basis of the menstrual cycle. 37 (j) ‘Second trimester of pregnancy’ means that portion of a 38 pregnancy following the twelfth week and extending through the 39 twentyfourth week of gestation. 40 (k) ‘Third trimester of pregnancy’ means that portion of a 41 pregnancy beginning with the twentyfifth week of gestation. 42 (l) ‘Viability’ means that stage of human development when 43 the fetus is potentially able to live outside of the mother’s womb

[98] 3 1 with or without the aid of artificial life support systems. For the 2 purposes of this chapter, a legal presumption is hereby created that 3 viability occurs no sooner than the twentyfourth week of 4 pregnancy. 5 (m)(9) ‘Minor’ means a female under the age of seventeen. 6 (n)(10) ‘Emancipated minor’ means a minor who is or has 7 been married or has by court order been freed from the care, 8 custody, and control of her parents. 9 (o)(11) ‘In loco parentis’ means any person over the age of 10 eighteen who has placed himself or herself in the position of a 11 lawful parent by assuming obligations which are incidental to the 12 parental relationship and has so served for a period of sixty days.” 13 14 SECTION 2. Article 1, Chapter 41, Title 44 of the 1976 Code is 15 amended by adding: 16 17 “Section 444115. The General Assembly finds: 18 (1) The State has legitimate interests from the outset of 19 pregnancy in protecting the health of a woman and the life of an 20 embryo or fetus. 21 (2) A woman has a right to choose an abortion before fetal 22 viability without undue interference from the State but, to promote 23 the state’s profound interest in the health of a woman and the life 24 of an embryo or fetus, the State may take measures to ensure that a 25 woman’s choice is informed. 26 (3) After fetal viability, the State may regulate and even 27 proscribe abortion, except where it is necessary, in the appropriate 28 medical judgment, for the preservation of life or health of the 29 mother. 30 (4) Fetal viability means that stage of human development 31 when the fetus is potentially able to live outside of the mother’s 32 womb with or without the aid of artificial life support systems. 33 (5) Advances in maternal health care and in neonatal care have 34 continued to advance fetal liability earlier in the pregnancy. 35 (6) There is general acceptance in the medical community that 36 an unborn child reaches fetal viability approximately twentyfour 37 weeks after conception. 38 (7) There is compelling medical evidence that advances in 39 neonatology has advanced fetal viability to twentytwo weeks after 40 conception. 41 (8) The National Institute of Child Health and Human 42 Development recognizes and calculates survival statistics

[98] 4 1 beginning with unborn children born twentytwo weeks after 2 conception. 3 (9) Some medical scholars have posited that an unborn child 4 may reach viability as early as twenty weeks after conception. 5 (10) At least twenty weeks after conception, there is substantial 6 evidence that an unborn child has the physical structures necessary 7 to experience pain. 8 (11) There is substantial evidence that, by twenty weeks after 9 conception, unborn children seek to evade certain stimuli in a 10 manner in which a reasonable adult would interpret as a response 11 to pain. 12 (12) Anesthesia is routinely administered to unborn children 13 who have developed twenty weeks or more past conception who 14 undergo prenatal surgery. 15 (13) Even prior to twenty weeks after conception, unborn 16 children have been observed to exhibit hormonal stress responses 17 to painful stimuli and those responses were reduced when pain 18 medication was administered directly to the unborn children. 19 (14) It is the purpose of this State to assert its compelling state 20 interest in protecting the lives of viable unborn children.” 21 22 SECTION 3. Section 444120 of the 1976 Code is amended to 23 read: 24 25 “Section 444120. (A) Abortion shall be a criminal act 26 except when performed under the following circumstances: 27 (a) During the first trimester of pregnancy the abortion is 28 performed with the pregnant woman’s consent by her attending 29 physician pursuant to his professional medical judgment. 30 (b) During the second trimester of pregnancy the abortion is 31 performed with the pregnant woman’s consent by her attending 32 physician in a hospital or clinic certified by the Department. 33 (c) During the third trimester of pregnancy, the abortion is 34 performed with the pregnant woman’s consent, and if married and 35 living with her husband the consent of her husband, in a certified 36 hospital, and only if the attending physician and one additional 37 consulting physician, who shall not be related to or engaged in 38 private practice with the attending physician, certify in writing to 39 the hospital in which the abortion is to be performed that the 40 abortion is necessary based upon their best medical judgment to 41 preserve the life or health of the woman. In the event that the 42 preservation of the woman’s mental health is certified as the 43 reason for the abortion, an additional certification shall be required

[98] 5 1 from a consulting psychiatrist who shall not be related to or 2 engaged in private practice with the attending physician. All facts 3 and reasons supporting such certification shall be set forth by the 4 attending physician in writing and attached to such certificate. No 5 person may perform an abortion prior to the end of the 6 twentysecond week after conception unless the abortion is 7 performed by the woman’s attending physician with the pregnant 8 woman’s informed consent. 9 (B) No person may perform or induce an abortion after the 10 twentysecond week after conception unless the woman has a 11 medical condition which, on the basis of the physician’s good faith 12 judgment, so complicates a pregnancy as to necessitate an 13 immediate abortion to avert the risk of her death or for which a 14 delay will create serious risk of substantial and irreversible 15 impairment of major bodily function.” 16 17 SECTION 4. Section 4441320 of the 1976 Code is amended by 18 adding an appropriately numbered new item to read: 19 20 “( ) ‘Anesthesia’ or ‘analgesic’ means a drug administered for 21 medical or surgical purposes that induces a partial or total loss of 22 sensation.” 23 24 SECTION 5. Section 4441330(A) of the 1976 Code is amended 25 to read: 26 27 “(A) Except in the case of a medical emergency and in addition 28 to any other consent required by the laws of this State, no abortion 29 may be performed or induced unless the following conditions have 30 been satisfied: 31 (1) The woman must be informed by the physician who is to 32 perform the abortion or by an allied health professional working in 33 conjunction with the physician of the procedure to be involved 34 and, for women choosing an abortion during the time period 35 during which a fetus may feel pain, that anesthetic or analgesic is 36 available to eliminate or alleviate pain to the fetus cause by the 37 particular method of abortion performed or induced. by the The 38 physician who is to perform or induce the abortion must inform the 39 woman of the probable gestational age of the embryo or fetus at 40 the time the abortion is to be performed. If an ultrasound is 41 performed, an abortion may not be performed sooner than sixty 42 minutes following completion of the ultrasound. The physician 43 who is to perform the abortion or an allied health professional

[98] 6 1 working in conjunction with the physician must inform the woman 2 before the ultrasound procedure of her right to view the ultrasound 3 image at her request during or after the ultrasound procedure. 4 (2) The woman must be presented by the physician who is to 5 perform the abortion or by an allied health professional working in 6 conjunction with the physician a written form containing the 7 following statement: ‘You have the right to review printed 8 materials prepared by the State of South Carolina which describe 9 fetal development, explain how the gestational age of her embryo 10 or fetus is calculated, list agencies which offer alternatives to 11 abortion, list healthcare providers, facilities, or clinics that perform 12 ultrasounds free of charge, information concerning fetal pain, and 13 describe medical assistance benefits which may be available for 14 prenatal care, childbirth, and neonatal care. You have the right to 15 view your ultrasound image.’ This form must be signed and dated 16 by both the physician who is to perform the procedure and the 17 pregnant woman upon whom the procedure is to be performed. 18 (3) The woman must certify in writing, before the abortion, 19 that the information described in item (1) of this subsection has 20 been furnished her, and that she has been informed of her 21 opportunity to review the information referred to in item (2) of this 22 subsection. 23 (4) Before performing the abortion, the physician who is to 24 perform or induce the abortion must determine that the written 25 certification prescribed by item (3) of this subsection or the 26 certification required by subsection (D) has been signed. This 27 subsection does not apply in the case where an abortion is 28 performed pursuant to a court order. 29 (5) At the woman’s request, the physician who is to perform 30 or induce the abortion, or an allied health professional working in 31 conjunction with the physician, must administer anesthetic or 32 analgesic to eliminate or alleviate pain to the fetus caused by the 33 particular method of abortion to be performed or induced.” 34 35 SECTION 6. Section 4441340(A) of the 1976 Code is amended 36 to read: 37 38 “(A) The South Carolina Department of Health and 39 Environmental Control shall cause to be published the following 40 printed materials: 41 (1) geographically indexed materials designed to inform the 42 woman of public and private agencies and services available to 43 assist a woman through pregnancy, upon childbirth, and while the

[98] 7 1 child is dependent, including adoption agencies, which include a 2 comprehensive list of the agencies available, a description of the 3 services they offer, and a description of the manner, including 4 telephone numbers, in which they may be contacted; 5 (2) materials designed to inform the woman of the probable 6 anatomical and physiological characteristics of the embryo or fetus 7 at twoweek gestational increments from the time when a woman 8 can be known to be pregnant to full term. Any photograph, 9 drawing or other depiction must state in bold letters, which are 10 easily legible, stating the magnification of the photograph, drawing 11 or depiction if it is not the actual size of the embryo or fetus at the 12 age indicated. The materials must be objective, nonjudgmental, 13 and designed to convey only accurate scientific information about 14 the embryo or fetus at the various gestational ages; 15 (3) materials designed to inform the woman of the principal 16 types of abortion procedures and the major risks associated with 17 each procedure, as well as the major risks associated with carrying 18 a fetus to fullterm; 19 (4) materials designed to inform the woman that medical 20 assistance benefits may be available for prenatal care, childbirth, 21 and neonatal care by providing the names, addresses, and phone 22 numbers of appropriate agencies that provide or have information 23 available on these benefits; 24 (5) materials designed to inform the woman of the 25 mechanisms available for obtaining child support payments.; 26 (6) information concerning fetal pain that includes, but is not 27 limited to: 28 (a) that by twenty weeks, an unborn child possesses all 29 anatomical links in its nervous system, including a spinal cord, 30 nerve tracts, thalamus, and cerebral cortex, that are necessary to 31 feel pain; 32 (b) that an unborn child who is twenty weeks gestation or 33 more is fully capable of experiencing pain; 34 (c) a description of the actual steps in abortion procedures 35 that cause fetal pain; 36 (d) that maternal anesthesia generally offers little pain 37 prevention for the unborn child; and 38 (e) that an anesthetic or analgesic is available to reduce or 39 alleviate pain to the fetus during an abortion.” 40 41 SECTION 7. The provisions of this act are severable. If any 42 section, subsection, paragraph, item, subitem, subparagraph, 43 sentence, clause, phrase, or word of this act is for any reason held

[98] 8 1 to be unconstitutional or invalid, such holding shall not affect the 2 constitutionality or validity of the remaining portions of the act, 3 the General Assembly hereby declaring that it would have passed 4 each and every section, subsection, item, subitem, paragraph, 5 subparagraph, sentence, clause, phrase, and word thereof, 6 irrespective of the fact that any one or more other sections, 7 subsections, paragraphs, subparagraphs, sentences, clauses, 8 phrases, or words hereof may be declared to be unconstitutional, 9 invalid, or otherwise ineffective. 10 11 SECTION 8. This act takes effect upon approval by the 12 Governor. 13 14 XX 15

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