H5399 — a bill that would have banned all abortions beginning at conception, with the exception of the life of the mother, rape, incest, and fatal fetal anomalies — failed to pass in the South Carolina Senate. Instead, the Senate passed a “strike and insert” version of the 2021 Fetal Heartbeat Bill that contains language that many South Carolina legal experts believe will make it much more likely the state Supreme Court will allow it to stand. The Senate added a ban on all state funding for Planned Parenthood and made it illegal for any South Carolina employee to use their state-provided health insurance to pay for an abortion. H5399, in a form almost identical to the House-passed version, failed because six Republicans joined Senate Democrats in voting to sustain a filibuster.
To fully understand the drama that has gripped the South Carolina Legislature this summer, we need to look at how we arrived at this point. As the Legislature neared the end of their 2022 session, news leaked that the United States Supreme Court was going to use Dobbs v. Jackson Women’s Health as an opportunity to overturn Roe v. Wade, a decision that has led to approximately 63.5 million abortions (according to the Guttmacher Institute) since 1973. Both the Senate and the House agreed to add consideration of new pro-life legislation in their sine die resolution, allowing them to reconvene this summer to consider South Carolina’s response should Roe be overturned.
Shortly after the official decision was announced, new House Speaker Merrill Smith (R-Sumter) appointed an ad hoc committee chaired by House Family Caucus Leader John McCravy (R-Greenwood). The committee produced the original language that became H5399. The bill’s early language allowed life of the mother as the lone exception. Situations where the mother’s life would be in danger were spelled out clearly in the bill.
H5399 made it through the committee process in the House without additional exceptions. However, the bill failed in the House and was immediately amended to include exceptions for rape and incest, with a 12-week cap and a requirement that the doctor performing the abortion had to preserve evidence of a rape and report the crime to local law enforcement within 24 hours. This version of the bill passed the House and was sent to the Senate.
While H5399 was working its way through the Legislature, the South Carolina Supreme Court voted 5 to 0 to temporarily block the enforcement of the Heartbeat Bill while it considers arguments raised from a lawsuit filed by Planned Parenthood and other abortion providers: namely, that language in the bill violates the South Carolina Constitution. Planned Parenthood’s lawsuit also contends the Heartbeat law violates a woman’s right to privacy. The Court, in its decision to put the Fetal Heartbeat law on hold, included language hinting that the Legislature needed to “fix” the language of the law or risk having the law overturned.
So … where are we? As of this writing, the strike and insert version of the bill heads to the House (that agreed to reconvene on Sept. 27), where the lawmakers can agree with the Senate version or amend it and send it back to the Senate. If the Senate refuses to agree to the changes by the House, both chambers will have to agree to seat members of a conference committee that would decide the ultimate fate of the bill. Several Republican lawmakers in the House have publicly indicated they will not concur, but will vote to send a version of the original bill back to the Senate.
By the time you read this column, the question of abortion in South Carolina may be settled. Worst-case scenario would be the Legislature fails to pass any version of the bill and the Supreme Court rules the Heartbeat law unconstitutional. South Carolina would then revert back to the 21-week Pain Capable law allowing abortions well into the second trimester. The best outcome would be for the House to send H5399 back to the Senate, where they find the votes necessary to overcome a filibuster and pass the bill into law. The next best option would be for the House to concur with the Senate-passed version, the Supreme Court upholds the Fetal Heartbeat law, and we end up where we began. If that happens, we will have to live with the fact that in the year Roe v. Wade was finally overturned, the South Carolina Legislature failed to ban abortion.