H 3267 Session 110 (1993-1994)
H 3267 General Bill, By R.S. Corning, Allison, B.O. Baker, H. Brown, Cato,
C.D. Chamblee, H.H. Clyborne, Cooper, Davenport, Delleney, Fair, J.G. Felder,
R.C. Fulmer, S.E. Gonzales, L.O. Graham, B.H. Harwell, Haskins, T.E. Huff,
M.F. Jaskwhich, Klauber, Koon, Lanford, Littlejohn, C.V. Marchbanks, Meacham,
Moody-Lawrence, Quinn, Robinson, Sharpe, Simrill, R. Smith, C.H. Stone,
C.L. Sturkie, Vaughn, Walker, C.C. Wells, Wilkins, S.S. Wofford, H.G. Worley,
D.A. Wright, Young-Brickell and R.M. Young
A Bill to designate Sections 44-41-10 through 44-41-80, Code of Laws of South
Carolina, 1976, as Article 1 of Chapter 41, Title 44, and to entitle the
Article "Abortions Generally"; to amend Chapter 41, Title 44, relating to
abortions, by adding Article 3 so as to enact the "Woman's Right to Know Act",
including provisions for penalties; to provide that the printed materials
required to be published pursuant to Section 44-41-340, as added by this Act,
must be published on or before the effective date of Article 3, Chapter 41,
Title 44, as added by this Act; and to provide for the severability of the
provisions, words, phrases, and clauses of this Act.
01/26/93 House Introduced and read first time HJ-10
01/26/93 House Referred to Committee on Judiciary HJ-10
04/29/93 House Committee report: Majority favorable with amend.,
minority unfavorable Judiciary HJ-5
01/27/94 House Debate interrupted HJ-42
02/03/94 House Amended HJ-37
02/03/94 House Debate interrupted HJ-41
02/09/94 House Debate interrupted HJ-96
02/10/94 House Debate interrupted HJ-555
02/16/94 House Debate interrupted HJ-38
02/23/94 House Debate interrupted HJ-45
02/24/94 House Amended HJ-431
02/24/94 House Read second time HJ-452
02/24/94 House Roll call Yeas-092 HJ-452
03/01/94 House Amended HJ-66
03/01/94 House Read third time and sent to Senate HJ-67
03/02/94 Senate Introduced and read first time SJ-9
03/02/94 Senate Referred to Committee on Medical Affairs SJ-10
05/11/94 Senate Committee report: Favorable with amendment
Medical Affairs SJ-68
COMMITTEE REPORT
May 11, 1994
H. 3267
Introduced by REPS. Corning, Cato, Sturkie, Haskins, Fulmer, Quinn,
Wells, Klauber, Robinson, A. Young, Cooper, Davenport, R. Smith,
Fair, Meacham, Simrill, Walker, Moody-Lawrence, Delleney, Felder,
Littlejohn, H. Brown, Baker, Worley, Gonzales, Stone, Harwell,
Marchbanks, Sharpe, Wofford, Allison, Chamblee, Vaughn, Clyborne,
Huff, Wright, Koon, Lanford, R. Young, Wilkins, Graham and
Jaskwhich
S. Printed 5/11/94--S.
Read the first time March 2, 1994.
THE COMMITTEE ON MEDICAL AFFAIRS
To whom was referred a Bill (H. 3267), to designate Sections
44-41-10 through 44-41-80, Code of Laws of South Carolina, 1976, as
Article 1 of Chapter 41, Title 44, and to entitle the article
"Abortions Generally", etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting
words and inserting therein the following:
/SECTION 1. Sections 44-41-10 through 44-41-80 of the 1976 Code
are designated Article 1, Chapter 41, Title 44 entitled "Abortions
Generally".
SECTION 2. Chapter 41, Title 44 of the 1976 Code is amended by
adding:
"Article 3
Woman's Right to Know
Section 44-41-310. This article may be cited as the `Woman's Right
to Know Act'.
Section 44-41-320. As used in this article:
(1) `Medical emergency' means a condition in which, on the basis
of the physician's good faith judgment, an immediate abortion is
necessary to avert the risk of the woman's death or for which a delay will
create serious risk of substantial and irreversible impairment of major
bodily function.
(2) `Probable gestational age of the embryo or fetus' means, in the
judgment of the attending physician or the physician's agent, based upon
the attending physician's examination or the woman's medical history,
the probable gestational age of the embryo or fetus at the time the
abortion is planned to be performed.
Section 44-41-330. (A) Except in the case of a medical emergency
and in addition to any other disclosure required by the laws of this State,
no abortion may be performed or induced unless the following
conditions have been satisfied:
(1) The woman must be informed by the physician who is to
perform the abortion, by the referring physician, or by an allied health
professional working in conjunction with one of the aforementioned
physicians of the procedure to be involved and of the probable
gestational age of the embryo or fetus at the time the abortion is to be
performed.
(2) The woman must be informed, by the physician, by the
physician's agent or, should the abortion be performed in a clinic, by its
agent, that she has the right to review the printed materials described in
Section 44-41-340. The physician, the physician's agent, or, should the
abortion be performed in a clinic, its agent must inform the woman that
materials have been provided by the State which describe fetal
development, list agencies which offer alternatives to abortion, and
describe medical assistance benefits which may be available for prenatal
care, childbirth, and neonatal care. If the woman chooses to view the
materials, a copy of the materials must be furnished to her.
(3) The woman must certify in writing, before the abortion, that
the information described in item (1) of this subsection has been
furnished her, and that she has been informed of her reasonable
opportunity to review the information referred to in item (2) of this
subsection.
(4) No abortion may be performed until the physician who is to
perform or induce the abortion or the physician's agent determines that
the written certification prescribed by item (3) of this subsection or the
certification required by subsection (D) has been signed, and that the
physician has also signed the certification. This subsection does not
apply in the case of a medical emergency or in the case where an
abortion is performed pursuant to a court order.
(B) Nothing herein limits the information provided by the referring
physician, the physician who is to perform the abortion, or allied health
professional to the person upon whom the abortion procedure is to be
performed.
(C) The clinic or other facility where the abortion is to be performed
or induced, upon request, may mail the printed materials described in
Section 44-41-340 to the woman upon whom the abortion is to be
performed or induced or the woman may obtain the information at the
local health department.
(D) In the event the person upon whom the abortion is to be
performed or induced is an unemancipated minor, as defined in Section
44-41-10, the information described in Section 44-41-330(A)(1) and (2)
must be furnished and offered respectively to a parent of the minor, a
legal guardian of the minor, a grandparent of the minor, or any person
who has been standing in loco parentis to the minor for a period of not
less than sixty days. The parent, legal guardian, grandparent, or person
who has been standing in loco parentis, as appropriate, must make the
certification required by Section 44-41-330(A)(3). In the event the
person upon whom the abortion is to be performed is under adjudication
of mental incompetency by a court of competent jurisdiction, the
information must be furnished and offered respectively to her spouse or
a legal guardian if she is married; if she is not married, from one parent
or a legal guardian. The spouse, legal guardian, or parent, as
appropriate, must make the certification required by Section
44-41-330(A)(3). This subsection does not apply in the case of an
abortion performed pursuant to a court order.
(E) A clinic or other facility must maintain, for three years after the
abortion is performed or induced, the woman's written verification that
the information was so provided and the printed materials were so
offered. In the case of a minor or mentally incompetent person, the
clinic or other facility is required to maintain a copy of the court order
or the medical records and written consent for three years after the
procedure is performed.
(F) This section does not apply if a clinic or other facility where
abortions are performed or induced does not have, through no fault of
the clinic or facility, the materials described in Section 44-41-340
required to be available to a woman.
Section 44-41-340. (A) The South Carolina Department of Health
and Environmental Control shall cause to be published the following
printed materials:
(1) geographically indexed materials designed to inform the
woman of public and private agencies and services available to assist a
woman through pregnancy, upon childbirth, and while the child is
dependent, including adoption agencies, which include a comprehensive
list of the agencies available, a description of the services they offer, and
a description of the manner, including telephone numbers, in which they
may be contacted;
(2) materials designed to inform the woman of fetal development.
The materials must be objective, nonjudgmental, and designed to convey
only accurate scientific information about the embryo or fetus at the
various gestational stages;
(3) materials designed to inform the woman of the principal types
of abortion procedures and the major risks associated with each
procedure, as well as the major risks associated with
carrying-to-full-term;
(4) materials designed to inform the woman that medical
assistance benefits may be available for prenatal care, childbirth, and
neonatal care by providing the names, addresses, and phone numbers of
appropriate agencies that provide or have information available on these
benefits;
(5) materials designed to inform the woman of the mechanisms
available for obtaining child support payments.
(B) The materials must be easily comprehendible and must be
printed in a typeface large enough to be clearly legible.
(C) The materials required under this section must be available from
the South Carolina Department of Health and Environmental Control
upon request and in appropriate number to any person, facility, or
hospital. The department in its discretion may provide the above
information in a single publication or multiple publications.
Section 44-41-350. A physician who performs an abortion when the
physician knows or should know that the provisions of this article have
not been complied with before the abortion is guilty of a misdemeanor
and, upon conviction, must be fined not more than one thousand dollars
for a first offense and not more than five thousand dollars for each
subsequent offense.
Section 44-41-360. In every proceeding or action brought under this
article, the court shall rule, upon motion of any person or upon its own
motion, whether the anonymity of any woman upon whom an abortion
is performed or attempted shall be preserved from public disclosure if
she does not give her consent to such a disclosure. If the court
determines that her anonymity be preserved, it shall issue orders to the
parties, witnesses, and counsel, and 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 must be accompanied by specific written findings explaining
why the anonymity of the woman should be 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, less
restrictive alternative exists. This section may not be construed to
conceal the identity of the plaintiff or of the prosecutrix or of witnesses
from the defendant or to abridge or deny the defendant's ability to
conduct discovery under applicable rules of court or the defendant's right
to a trial by jury or to cross examination.
SECTION 3. Section 30-4-40(a) of the 1976 Code is amended by
adding an appropriately numbered item to read:
"( ) the name, address, and telephone number of a person in
whose name a motor vehicle license plate is registered; provided,
however, this exemption from disclosure shall not apply to an active
duty law enforcement officer or agency authorized by law to have access
to this information."
SECTION 4. The printed materials required to be published
pursuant to Section 44-41-340 of the 1976 Code as added by this act
must be published on or before the effective date of Article 3, Chapter
41, Title 44 of the 1976 Code, as added by this act.
SECTION 5. If any provision, word, phrase, or clause of this act or
the application thereof to any person or circumstance is held invalid,
such invalidity shall not affect the provisions, words, phrases, clauses,
or applications of this act which can be given effect without the invalid
provision, word, phrase, clause, or application, and, to this end, the
provisions, words, phrases, and clauses of this act are declared to be
severable.
SECTION 6. This act takes effect June 30, 1994, or ninety days
after the signature of the Governor, whichever occurs later, except that
Section 4 of this act takes effect upon approval by the Governor./
Amend title to conform.
HOLLY A. CORK, for Committee.
STATEMENT OF ESTIMATED FISCAL
IMPACT
1. Estimated Cost to State-First Year$ 100,060
2. Estimated Cost to State-Annually Thereafter$ 99,060
The proposed legislation, "Woman's Right to Know"
requires that the Department of Health and Environmental Control
(DHEC) cause to be printed and available in appropriate numbers to any
person, facility, or hospital:
1) Geographically Indexed materials, with a comprehensive list
with telephone numbers, of private and public agencies to assist a
woman through pregnancy and the services available.
2) Materials designed to inform the woman of the probable
anatomical and physiological characteristics of the unborn child at two
week gestation periods, to include survivability, in a manner which must
be objective, nonjudgemental, and designed to convey only accurate,
scientific information.
3) Materials designed to inform the woman that medical assistance
may be available for parental care, child birth, and neonatal care and
identifying the agencies (private/public) with addresses and phone
numbers.
4) Materials designed to inform the woman of the mechanisms
available to obtain child support.
All materials must be available at DHEC at no expense to the
requestor for prenatal care, childbirth, and neonatal care.
Assuming that 15,000 abortions is a valid estimate in a given year,
that approximately forty (40) locations perform abortions (as determined
from DHEC), the first year publication of the index, gestational, medical
assistance and child support information should number approximately
18,000. The additional material is to provide a stock of publications at
each site commensurate with the number of abortions performed. The
average per site is about 330 with the range being 6 to 1,008 abortions.
The printing cost is estimated at $5.00; $.30; $.08; $.04 respectively
with a total cost of $97,560. Developmental costs of the index is
estimated at $1,500 and the medical information is $1,000, if
copyrighted material cost is waived. The first year cost is estimated at
a total of $100,060. This estimate is not based upon any statistical base
and the cost may exceed or be less than shown. Assuming that the
providers of abortions would need to go to a local DHEC office for the
material, distributional costs to DHEC would be negligible if
incorporated with normal supply distributions.
Second year costs, including updating of the Index at approximately
$1,500 with no update cost to the educational material, with the same
demand of 18,000 copies of both documents being available at DHEC
offices statewide is estimated at $99,060.
This is the same bill as proposed in the 1993 session except that a $10
fee is no longer required nor will the fee offset the cost of the printing
and distribution of the material.
Prepared By: Approved By:
Edward P. Brophy George N. Dorn, Jr.
State Budget Analyst State Budget Division
A BILL
TO DESIGNATE SECTIONS 44-41-10 THROUGH 44-41-80, CODE
OF LAWS OF SOUTH CAROLINA, 1976, AS ARTICLE 1 OF
CHAPTER 41, TITLE 44, AND TO ENTITLE THE ARTICLE
"ABORTIONS GENERALLY"; TO AMEND CHAPTER
41, TITLE 44, RELATING TO ABORTIONS, BY ADDING ARTICLE
3 SO AS TO ENACT THE "WOMAN'S RIGHT TO KNOW
ACT", INCLUDING PROVISIONS FOR PENALTIES; TO
PROVIDE THAT THE PRINTED MATERIALS REQUIRED TO BE
PUBLISHED PURSUANT TO SECTION 44-41-340, AS ADDED BY
THIS ACT, MUST BE PUBLISHED ON OR BEFORE THE
EFFECTIVE DATE OF ARTICLE 3, CHAPTER 41, TITLE 44, AS
ADDED BY THIS ACT; AND TO PROVIDE FOR THE
SEVERABILITY OF THE PROVISIONS, WORDS, PHRASES, AND
CLAUSES OF THIS ACT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Sections 44-41-10 through 44-41-80 of the 1976 Code
are designated Article 1, Chapter 41, Title 44 entitled "Abortions
Generally".
SECTION 2. Chapter 41, Title 44 of the 1976 Code is amended by
adding:
"Article 3
Woman's Right to Know
Section 44-41-310. This article may be cited as the `Woman's Right
to Know Act'.
Section 44-41-320. As used in this article:
(1) `Medical emergency' means that condition which, on the basis
of the physician's good faith judgment, so complicates a pregnancy as to
necessitate an immediate abortion to avert the risk of her death or for
which a delay will create serious risk of substantial and irreversible
impairment of major bodily function.
(2) `Probable gestational age of the embryo or fetus' means what, in
the judgment of the attending physician based upon the attending
physician's examination and medical history given by the woman, is
with reasonable probability the gestational age of the embryo or fetus at
the time the abortion is planned to be performed.
Section 44-41-330. (A) Except in the case of a medical emergency
and in addition to any other consent required by the laws of this State,
no abortion may be performed or induced unless the following
conditions have been satisfied:
(1) The woman must be informed by the physician who is to
perform the abortion, by the referring physician, or by an allied health
professional working in conjunction with one of the aforementioned
physicians of the procedure to be involved and of the probable
gestational age of the embryo or fetus at the time the abortion is to be
performed.
(2) The woman must be informed, by the physician, by his agent
or, should the abortion be performed in a clinic, by its agent, that she has
the right to review the printed materials described in Section 44-41-340.
The physician, his agent, or, should the abortion be performed in a
clinic, its agent must orally inform the woman that materials have been
provided by this State which describe the embryo or fetus, list agencies
which offer alternatives to abortion, and describe medical assistance
benefits which may be available for prenatal care, childbirth, and
neonatal care. If the woman chooses to view the materials, a copy of the
materials must be furnished to her.
(3) The woman must certify in writing, before the abortion, that
the information described in item (1) of this subsection has been
furnished her, and that she has been informed of her opportunity to
review the information referred to in item (2) of this subsection.
(4) Before performing the abortion, the physician who is to
perform or induce the abortion or his agent must determine that the
written certification prescribed by item (3) of this subsection or the
certification required by subsection (D) has been signed.
(B) Nothing herein limits the information provided by the referring
physician, the physician who is to perform the abortion, or allied health
professional to the person upon whom the abortion procedure is to be
performed.
(C) No abortion may be performed sooner than two hours after the
woman receives the written materials and certifies this fact to the
physician or his agent. This subsection (C) does not apply in the case of
a medical emergency.
(D) If the clinic or other place where the abortion is to be performed
or induced mails the printed materials described in Section 44-41-340 to
the woman upon whom the abortion is to be performed or induced or if
the woman picks up the information at the local health department and
if the woman verifies in writing, before the abortion, that the printed
materials were received by her more than twenty-four hours before the
abortion is scheduled to be performed or induced, that the information
described in item (A)(1) has been provided to her, and that she has been
informed of her opportunity to review the information referred to in item
(A)(2), then the waiting period required pursuant to subsection (C) does
not apply. However, the clinic or other place is nevertheless required to
maintain, for three years, the woman's written verification that the
information was so provided and the printed materials were so received.
(E) Subsections (C) and (D) shall not apply if the abortion is
performed pursuant to a court order or if the woman is mentally retarded,
this is documented in her medical record, and her parents or legal
guardian or legal representatives consent in writing to the abortion. The
clinic or other such place is nevertheless required to maintain, for three
years, a copy of such court order or such medical records and written
consent.
(F) In the event the person upon whom the abortion is to be
performed or induced is a minor and her parents consent to the abortion,
the information described in Section 44-41-330(A)(1) must be furnished
to the parents of such minor and the information referred to in Section
44-41-330(A)(2) must be furnished to the parents and the parents must
make the certification required by Section 44-41-330(A)(3).
(G) This section is suspended if a clinic or other place where
abortions are performed or induced does not have, through no fault of
the clinic or place and if the clinic or place can demonstrate through
written evidence the unavailability of the materials, the materials
described in Section 44-41-340 required to be available to a woman
pursuant to subsection (A)(2) or mailed pursuant to subsection (D).
Section 44-41-340. (A) The South Carolina Department of Health
and Environmental Control shall cause to be published the following
printed materials:
(1) geographically indexed materials designed to inform the
woman of public and private agencies and services available to assist a
woman through pregnancy, upon childbirth, and while the child is
dependent, including adoption agencies, which include a comprehensive
list of the agencies available, a description of the services they offer, and
a description of the manner, including telephone numbers, in which they
may be contacted;
(2) materials designed to inform the woman of the probable
anatomical and physiological characteristics of the embryo or fetus at
two-week gestational increments from the time when a woman can be
known to be pregnant to full term. Any photograph, drawing or other
depiction must state in bold letters, which are easily legible, stating the
magnification of the photograph, drawing or depiction if it is not the
actual size of the embryo or fetus at the age indicated. The materials
must be objective, nonjudgmental, and designed to convey only accurate
scientific information about the embryo or fetus at the various
gestational ages;
(3) materials designed to inform the woman of the principal types
of abortion procedures and the major risks associated with each
procedure, as well as the major risks associated with
carrying-to-full-term;
(4) materials designed to inform the woman that medical
assistance benefits may be available for prenatal care, childbirth, and
neonatal care by providing the names, addresses, and phone numbers of
appropriate agencies that provide or have information available on these
benefits;
(5) materials designed to inform the woman of the mechanisms
available for obtaining child support payments.
(B) The materials must be easily comprehendible and must be
printed in a typeface large enough to be clearly legible.
(C) The materials required under this section must be available from
the South Carolina Department of Health and Environmental Control
upon request and in appropriate number to any person, facility, or
hospital.
Section 44-41-350. A person who performs an abortion when he
knows or should know that the provisions of this article have not been
complied with before the abortion is guilty of a misdemeanor and, upon
conviction, must be punished by a fine of not less than one thousand
dollars and not more than five thousand dollars. If a person has been
previously convicted under this section, he shall, upon a second and any
subsequent conviction under this section, be punished by imprisonment
of not less than one year and not more than five years, as well as by the
fine provided for in this section, no part of which may be suspended.
Section 44-41-360. In every proceeding or action brought under this
article, the court shall rule whether the anonymity of any woman upon
whom an abortion is performed or attempted shall be preserved from
public disclosure if she does not give her consent to such a disclosure.
The court, upon motion or sua sponte, shall make such a ruling and,
upon determining that her anonymity be preserved, shall issue orders to
the parties, witnesses, and counsel, and 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 must be accompanied by specific written findings
explaining why the anonymity of the woman should be 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, less
restrictive alternative exists. This section may not be construed to
conceal the identity of the plaintiff or of the prosecutrix or of witnesses
from the defendant or to abridge or deny the defendant's ability to
conduct discovery under applicable rules of court or the defendant's right
to a trial by jury or to cross examination.
Section 44-41-370. If otherwise allowed by law, any information
requested of the South Carolina Department of Highways and Public
Transportation relating to the ownership of a motor vehicle licensed and
registered in this State, based on the presentation by the requesting party
of the motor vehicle license tag number, may be provided by the
department only after forty-eight hours following the request, unless the
requesting party is able to demonstrate to the satisfaction of the
department that the requested information is needed for emergency
purposes."
SECTION 3. The printed materials required to be published pursuant
to Section 44-41-340 of the 1976 Code as added by this act must be
published on or before the effective date of Article 3, Chapter 41, Title
44 of the 1976 Code, as added by this act.
SECTION 4. If any provision, word, phrase, or clause of this act or the
application thereof to any person or circumstance is held invalid, such
invalidity shall not affect the provisions, words, phrases, clauses, or
applications of this act which can be given effect without the invalid
provision, word, phrase, clause, or application, and, to this end, the
provisions, words, phrases, and clauses of this act are declared to be
severable.
SECTION 5. This act takes effect June 30, 1994, or ninety days after
the signature of the Governor, whichever occurs later, except that
Section 3 of this act takes effect upon approval by the Governor.
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