H 3926 Session 110 (1993-1994)
H 3926 General Bill, By Fair
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
44-41-15 so as to provide circumstances under which an abortion may be
performed; by adding Section 44-41-45 so as to provide exemptions under a
medical emergency; by amending Section 44-41-10, as amended, relating to
definitions relative to abortions, so as to revise certain definitions; to
amend Section 44-41-30, as amended, relating to consent, so as to delete
provisions inconsistent with circumstances allowing an abortion; to amend
Section 44-41-70, relating to department regulations for hospitals and
clinics, so as to delete references to clinics; and to repeal Section 44-41-20
relating to circumstances under which an abortion may be performed.
04/13/93 House Introduced and read first time HJ-14
04/13/93 House Referred to Committee on Judiciary HJ-15
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 44-41-15 SO AS TO PROVIDE
CIRCUMSTANCES UNDER WHICH AN ABORTION MAY BE
PERFORMED; BY ADDING SECTION 44-41-45 SO AS TO
PROVIDE EXEMPTIONS UNDER A MEDICAL EMERGENCY; BY
AMENDING SECTION 44-41-10, AS AMENDED, RELATING TO
DEFINITIONS RELATIVE TO ABORTIONS, SO AS TO REVISE
CERTAIN DEFINITIONS; TO AMEND SECTION 44-41-30, AS
AMENDED, RELATING TO CONSENT, SO AS TO DELETE
PROVISIONS INCONSISTENT WITH CIRCUMSTANCES
ALLOWING AN ABORTION; TO AMEND SECTION 44-41-70,
RELATING TO DEPARTMENT REGULATIONS FOR HOSPITALS
AND CLINICS, SO AS TO DELETE REFERENCES TO CLINICS;
AND TO REPEAL SECTION 44-41-20 RELATING TO
CIRCUMSTANCES UNDER WHICH AN ABORTION MAY BE
PERFORMED.
Whereas, the General Assembly finds that liberty and life founded on
inherent and inalienable rights are entitled to protection of law and due
process, and that unborn children have inherent and inalienable rights
that are entitled to protection by the State of South Carolina; and
Whereas, the State of South Carolina has a compelling interest in the
protection of human life, including that of unborn children, and in the
protection of each person's right to exercise inalienable rights in
accordance with the law; and
Whereas, it is the intent of the General Assembly to protect and
guarantee to unborn children their inherent and inalienable rights to life
and liberty, as required; and
Whereas, it is also the policy of the General Assembly and of the State
that, in connection with abortion, a woman's liberty interest, in limited
circumstances, may outweigh the unborn child's right to protection.
These limited circumstances arise when the abortion is necessary to save
the pregnant woman's life or prevent life-threatening damage to her
physical health, and when pregnancy occurs as a result of rape or incest.
It is recognized that, in cases of rape or incest, the fact that the woman
has been an unwilling participant in the reproductive process may justify
the preference of her rights over those of the unborn child; and
Whereas, it is further the finding and policy of the General Assembly
and of the State that a woman may terminate the pregnancy if the unborn
child would be born with grave and irremediable physical or mental
defects that are incompatible with sustained survival. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 44-41-15. (A) An abortion may be performed in
this State only by a physician if performed ninety days or more after the
commencement of the pregnancy as defined by competent medical
practices, and it is performed in a hospital.
(B) An abortion may be performed in this State only under the
following circumstances:
(1) the pregnant woman's attending physician has certified that,
in the physician's professional judgment, the abortion is necessary to
save her life;
(2) the pregnancy is the result of criminal sexual conduct that was
reported by the victim to a law enforcement agency before the abortion;
(3) the pregnancy is the result of incest, as defined by Section
16-15-20 and the incident was reported by the victim to a law
enforcement agency before the abortion;
(4) in the professional judgment of the pregnant woman's
attending physician, to prevent grave damage to the pregnant woman's
medical health; or
(5) in the professional judgment of the pregnant woman's
attending physician, to prevent the birth of a child that would be born
with grave defects.
(C) After twenty weeks gestational age, measured from the date of
conception, an abortion may be performed only for those purposes and
circumstances described in subsection (B)(1), (4), and (5)."
SECTION 2. The 1976 Code is amended by adding:
"Section 44-41-45. When due to a serious medical emergency
time does not permit compliance with Sections 44-41-15 or 44-41-30,
these sections do not apply."
SECTION 3. Section 44-41-10 of the 1976 Code, as last amended by
Act 341 of 1990, is further amended to read:
"Section 44-41-10. As used in this chapter:
(a) `Abortion' means the use of an instrument, medicine, drug,
or other substance or device with intent to terminate the pregnancy of a
woman known to be pregnant for reasons other than to increase the
probability of a live birth, to preserve the life or health of the child after
live birth, or to remove a dead fetus the termination of or
attempted termination of human pregnancy after implantation of a
fertilized ovum, with an intent other than to produce a live birth or to
remove a dead unborn child, and includes all procedures undertaken to
kill a live unborn child and includes all procedures undertaken to
produce a miscarriage.
(b) `Physician' means a person licensed to practice medicine in this
State or a physician in the employment of the government of the
United States who is similarly qualified.
(c) `Department' means the South Carolina Department of Health
and Environmental Control.
(d) `Hospital' means those institutions licensed for hospital operation
by the Department in accordance with the provisions of S 44-7-310
and which have also been certified by the Department to be suitable
facilities for the performance of abortions Title 44, Chapter 7
and includes a clinic or other medical facility to the extent that such
clinic or other medical facility provides equipment and personnel
sufficient in quantity and quality to provide the same degree of safety to
the pregnant woman and the unborn child as would be provided for the
particular medical procedures undertaken by a general hospital licensed
by the department. It is the responsibility of the department to determine
if the clinic or other medical facility qualifies and to certify this
qualification.
(e) "Clinic" shall mean any facility other than a
hospital as defined in subsection (d) which has been licensed by the
Department, and which has also been certified by the Department to be
suitable for the performance of abortions. (RESERVED)
(f) `Pregnancy' means the condition of a woman carrying a fetus or
embryo within her body as the result of conception.
(g) `Conception' means the fecundation of the ovum by the
spermatozoa.
(h) `Consent' means a signed and witnessed voluntary agreement to
the performance of an abortion.
(i) `First trimester of pregnancy' means the first twelve weeks of
pregnancy commencing with conception rather than computed on the
basis of the menstrual cycle.
(j) `Second trimester of pregnancy' means that portion of a
pregnancy following the twelfth week and extending through the
twenty-fourth week of gestation.
(k) `Third trimester of pregnancy' means that portion of a pregnancy
beginning with the twenty-fifth week of gestation.
(l) `Viability' means that stage of human development when the
fetus is potentially able to live outside of the mother's womb with or
without the aid of artificial life-support systems. For the purposes of this
chapter, a legal presumption is hereby created that viability occurs no
sooner than the twenty-fourth twentieth week of
pregnancy.
(m) `Minor' means a female under the age of seventeen.
(n) `Emancipated minor' means a minor who is or has been married
or has by court order been freed from the care, custody, and control of
her parents.
(o) `In loco parentis' means any person over the age of eighteen who
has placed himself or herself in the position of a lawful parent by
assuming obligations which are incidental to the parental relationship
and has so served for a period of sixty days."
SECTION 4. Section 44-41-30 of the 1976 Code, as last amended by
Act 341 of 1990, is further amended to read:
"Section 44-41-30. (A) Consent is required before the
performance of an abortion from the pregnant woman in every case and
in the case of a minor, it must be obtained pursuant to the provisions of
Section 44-41-31.
(B) In the case of a woman who is under adjudication of mental
incompetency by a court of competent jurisdiction, consent must be
obtained from her spouse or a legal guardian if she is married; if she is
not married, from one parent or a legal guardian.
(C) Notwithstanding the consent required in subsections (A) and
(B) consent must be waived if:
(1) a physician determines that a medical emergency exists
involving the life of or grave physical injury to the pregnant woman; or
(2) the pregnancy is the result of incest.
(D) In cases of incest the physician performing the abortion shall
report the alleged incest to the local county department of social services
or to a law enforcement agency in the county where the child resides or
is found. Failure to report is a violation punishable under the child
abuse laws of this State.
(E) Nothing in this section permits a physician to perform an
abortion without first obtaining the consent of the pregnant woman if she
is capable of giving consent."
SECTION 5. Section 44-41-70 of the 1976 Code is amended to read:
"Section 44-41-70. (a) The Department shall
promulgate and enforce rules and regulations for the certification
of hospitals as defined in Section 44-41-10(d) as suitable facilities for
the performance of abortions.
(b) The Department shall promulgate and enforce rules and
regulations for the licensing and certification of facilities other than
hospitals as defined in S 44-41-10(d) wherein abortions are to be
performed as provided for in S 44-41-20(b)."
SECTION 6. Section 44-41-20 of the 1976 Code is repealed.
SECTION 7. This act takes effect upon approval by the Governor.
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