A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING ARTICLE 8 TO CHAPTER 41, TITLE 44 SO AS TO PROHIBIT THE MANUFACTURE, DISTRIBUTION, POSSESSION, MAILING, TRANSPORTING, DELIVERY, AND PRESCRIBING OF ABORTION-INDUCING DRUGS IN THE STATE OF SOUTH CAROLINA, WITH EXCEPTIONS; TO ADDRESS RECOVERABLE DAMAGES; TO ESTABLISH PENALTIES; TO AUTHORIZE QUI TAM ACTIONS; TO ADDRESS CERTAIN OUT-OF-STATE LEGAL ACTIONS BY CLARIFYING THAT SOUTH CAROLINA LAW APPLIES TO ANY OUT-OF-STATE LEGAL ACTIONS OR CONDUCT THAT IS THE BASIS FOR THESE LEGAL ACTIONS; AND FOR OTHER PURPOSES; AND BY ADDING ARTICLE 10 TO CHAPTER 41, TITLE 44 SO AS TO PROHIBIT CERTAIN ABORTION ASSISTANCE ACTIVITIES, INCLUDING PAYMENT OF ABORTION COSTS AND PROVIDING FINANCIAL SUPPORT TO AN ABORTION FUND, WITH EXCEPTIONS; TO ESTABLISH PENALTIES; AND FOR OTHER PURPOSES.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 41, Title 44 of the S.C. Code is amended by adding:

 

Article 8

 

Liability for Injuries and Illegal Acts Involving Abortion-Inducing Drugs

 

    Section 44-41-810. For purposes of this article:

       (1) "Abortion" means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child. Such use, prescription, or means is not an abortion if done with the intent to save the life or preserve the health of the unborn child, or to remove a dead unborn child.

       (2) "Abortion-inducing drugs" means any drug, medicine, or any other substance, including a regimen of two or more drugs, medicines, or substances, that is prescribed, dispensed, or administered with the intent of terminating a clinically diagnosable pregnancy of a woman and with knowledge that the termination will, with reasonable likelihood, cause the death of the woman's unborn child. The term includes off-label use of drugs, medicines, or other substances known to have abortion-inducing properties that are prescribed, dispensed, or administered with the intent of causing an abortion, including the mifeprex regimen, mifepristone, misoprostol (Cytotec), and methotrexate. The term does not include:

           (a) Plan B, morning-after pills, intrauterine devices, or any other type of contraception or emergency contraception;

           (b) a drug, medicine, or other substance that may be known to cause an abortion but is prescribed, dispensed, or administered solely for reasons that do not include abortion, such as misoprostol that is prescribed, dispensed, or administered for the purpose of treating stomach ulcers; or

           (c) a drug, medicine, or other substance that is prescribed by a licensed physician to perform or induce an abortion in response to a medical emergency.

       (3) "Abortion fund" means a person, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity that exists for the purpose of aiding or abetting elective abortions, and that pays for, reimburses, or subsidizes in any way the costs associated with obtaining an elective abortion.

       (4) "Abortion provider" means a person, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity that performs elective abortions.

       (5) "Affiliate" means a person or entity who enters into with another person or entity a legal relationship created or governed by at least one written instrument, including a certificate of formation, a franchise agreement, standards of affiliation, bylaws, or a license, that demonstrates:

           (a) common ownership, management, or control between the parties to the relationship;

           (b) a franchise granted by the person or entity to the affiliate; or

           (c) the granting or extension of a license or other agreement authorizing the affiliate to use the other person's or entity's brand name, trademark, service mark, or other registered identification mark.

       (6) "Elective abortion" means any abortion other than those performed or induced in response to a medical emergency by a licensed physician.

       (7) "Fertilization" means the fusion of a human spermatozoon with a human ovum.

       (8) "Governmental entity" means this State, a state agency in the executive, judicial, or legislative branch of state government, or a political subdivision of this State.

       (9) "Hospital" means those institutions licensed for hospital operation by the Department of Public Health in accordance with Article 3, Chapter 7, Title 44, and which have also been certified by the department to be suitable facilities for the performance of abortions.

       (10) "Human being" or "human" means an individual member of the species Homo sapiens at any stage of development beginning at fertilization.

       (11) "Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.

       (12) "Medical emergency" means in reasonable medical judgment, a condition exists that has complicated the pregnant woman's medical condition and necessitates an abortion to prevent death or serious risk of a substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. A condition must not be considered a medical emergency if based on a claim or diagnosis that a woman will engage in conduct that she intends to result in her death or in a substantial and irreversible physical impairment of a major bodily function.

       (13) "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

       (14) "Unborn child" means an individual organism of the species Homo sapiens in any stage of gestation from fertilization until live birth.

       (15) "Woman" and "women" include any person whose biological sex is female, including any person with XX chromosomes and any person with a uterus, regardless of any gender identity that the person attempts to assert or claim.

 

    Section 44-41-820. Notwithstanding any other provision of law, this article does not apply to and may not be construed to impose liability on:

       (1) a hospital;

       (2) a physician or healthcare professional licensed to practice medicine in this State, except as provided by Section 44-41-840(K)(4);

       (3) an internet service provider or the provider's affiliates or subsidiaries;

       (4) a search engine;

       (5) a cloud service provider that solely provides access or connection to or from an internet website or other information or content on the internet or on a facility, system, or network that is not under the provider's control, including transmission, downloading, intermediate storage, access software, or other services; or

       (6) a person who manufactures, distributes, mails, transports, delivers, prescribes, provides, or possesses abortion-inducing drugs solely for one or more of the following purposes:

           (a) treating a medical emergency;

           (b) removing an ectopic pregnancy;

           (c) removing a dead, unborn child whose death was caused by spontaneous abortion; or

           (d) a purpose that does not include performing, inducing, attempting, or assisting an elective abortion.

 

    Section 44-41-830. (A) Notwithstanding any other provision of law and except as provided by subsection (B), a person may not:

       (1) manufacture, distribute, or possess an abortion-inducing drug in this State; or

       (2) mail, transport, deliver, prescribe, or provide an abortion-inducing drug in any manner to or from any person or location in this State.

    (B) Subsection (A) does not prohibit:

       (1) speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the Supreme Court of the United States' interpretations of the Fourteenth Amendment of the United States Constitution, or by Section 2, Article I of the South Carolina Constitution;

       (2) conduct that a pregnant woman takes in the course of aborting or attempting to abort the woman's unborn child;

       (3) the manufacture, distribution, mailing, transport, delivery, prescribing, provision, or possession of an abortion-inducing drug solely for purposes that do not include performing, inducing, attempting, assisting, or aiding or abetting an illegal abortion; or

       (4) conduct of a person at the direction of a federal agency, contractor, or employee to carry out a duty pursuant to federal law, if prohibiting that conduct would violate the doctrine of preemption or intergovernmental immunity.

 

    Section 44-41-840. (A) Notwithstanding any other provision of law and except as provided by this article, a person who manufactures, mails, distributes, transports, delivers, or provides abortion-inducing drugs, or who aids or abets the performance or induction or attempt of an abortion or the manufacture, mailing, distribution, transportation, delivery, or provision of abortion-inducing drugs, is strictly, absolutely, and jointly and severally liable for:

       (1) the wrongful death of an unborn child or pregnant woman who dies from the abortion or attempted abortion or use of abortion-inducing drugs; and

       (2) any personal injuries suffered by any unborn child or pregnant woman from the abortion or attempted abortion or use of abortion-inducing drugs.

    (B) Notwithstanding subsection (A), no lawsuit may be brought pursuant to this section against a provider or user of an interactive computer service if a lawsuit would be preempted by 47 U.S.C. Section 230(c).

    (C) Notwithstanding any other provision of law, a person who engages in the conduct described in subsection (A) is liable if his conduct contributes in any way to the death or personal injuries suffered by an unborn child or a pregnant woman, regardless of whether the person's conduct was a but-for or proximate cause of the death or injury.

    (D) Notwithstanding any other provision of law, a wrongful-death claim pursuant to this section may be brought by the mother or the father, or a grandparent or sibling, of an unborn child who dies from the use of abortion-inducing drugs, regardless of whether the other family members decide to sue. The biological father of an unborn child who dies from the use of abortion-inducing drugs may sue for wrongful death regardless of whether he was married to the unborn child's mother at the time of the unborn child's conception or death, except as provided by subsection (K)(3).

    (E)(1) It is an affirmative defense to a claim if a defendant sued pursuant to this section:

       (a) was unaware that it was engaged in the conduct described in subsection (A); and

       (b) took reasonable precautions to ensure that it would not manufacture, mail, distribute, transport, deliver, provide, or aid or abet the manufacture, mailing, distribution, transportation, delivery, or provision of abortion-inducing drugs.

       (2) The defendant has the burden of proving an affirmative defense pursuant to this subsection by a preponderance of the evidence.

    (F) Notwithstanding any other provision of law, if a plaintiff who brings suit pursuant to this section is unable to identify the specific manufacturer of the abortion-inducing drug that caused the death or injury, then liability must be apportioned among all manufacturers of that abortion-inducing drug in proportion to each manufacturer's share of the national market for that abortion-inducing drug at the time the death or injury occurred. A manufacturer is not subject to liability pursuant to this section if it:

       (1) manufactures abortion-inducing drugs solely for purposes described in Section 44-41-820(6); and

       (2) took reasonable precautions to ensure that its drugs would not be distributed, mailed, transported, delivered, prescribed, or provided for purposes other than those described in Section 44-41-820(6).

    (G) Notwithstanding any other provision of law, a person may bring an action pursuant to this section no later than the thirtieth anniversary of the date the cause of action accrues.

    (H) Notwithstanding any other provision of law, the following are not a defense to an action brought pursuant to this section:

       (1) a defendant's ignorance or mistake of law, including a defendant's mistaken belief that the requirements or provisions of this article are unconstitutional or were unconstitutional;

       (2) a defendant's reliance on any court decision that has been vacated, reversed, or overruled on appeal or by a subsequent court, even if that court decision had not been vacated, reversed, or overruled when the cause of action accrued;

       (3) a defendant's reliance on any state or federal court decision that is not binding on the court in which the action has been brought;

       (4) a defendant's reliance on any federal statute, agency rule or action, or treaty that has been repealed, superseded, or declared invalid or unconstitutional, even if that federal statute, agency rule or action, or treaty had not been repealed, superseded, or declared invalid or unconstitutional when the cause of action accrued;

       (5) the laws of another state or jurisdiction, including an abortion shield law, unless the South Carolina Constitution or federal law compels the court to enforce that law;

       (6) nonmutual issue preclusion or nonmutual claim preclusion;

       (7) the consent of the plaintiff or the unborn child's mother to the abortion, or the consent of one or both parents of the unborn child's mother to the abortion, or the consent of the legal guardian of the unborn child's mother to the abortion;

       (8) contributory or comparative negligence;

       (9) assumption of risk;

       (10) lack of but-for or proximate causation;

       (11) sovereign immunity, governmental immunity, or official immunity, or

       (12) any claim that the enforcement of this article or the imposition of civil liability against the defendant will violate the constitutional rights of third parties, except as provided by Section 44-41-730.

    (I) Notwithstanding any other provision of law, any waiver or purported waiver of the right to sue pursuant to this section is void as against public policy and is not enforceable in any court.

    (J) Notwithstanding any other provision of law, this section does not impose liability for:

       (1) death or personal injuries resulting from a lawful abortion performed in this State;

       (2) death or personal injuries resulting from an abortion performed or induced by a licensed physician in response to a medical emergency;

       (3) speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the Supreme Court of the United States' interpretations of the Fourteenth Amendment of the United States Constitution, or by Section, 2, Article I of the South Carolina Constitution;

       (4) conduct taken by a pregnant woman who aborts or seeks to abort her unborn child;

       (5) the provision of basic public services, including fire and police protection and utilities, by a governmental entity or a common carrier to an abortion provider, an abortion fund, an affiliate of an abortion provider or abortion fund, or a manufacturer or distributor or abortion-inducing drugs, in the same manner as the governmental entity or common carrier provides those services to the general public;

       (6) the manufacture, distribution, mailing, transport, delivery, prescription, provision, or possession of an abortion-inducing drug solely for one or more of the purposes described in Section 44-41-820(6); or

       (7) conduct taken at the behest of federal agencies, contractors, or employees that are carrying out duties pursuant to federal law, if a prohibition on that conduct would violate the doctrines of preemption or intergovernmental immunity.

    (K) Notwithstanding any other provision of law, a civil action pursuant to this section may not be brought:

       (1) against the woman who used or sought to obtain abortion-inducing drugs to abort or attempt to abort her unborn child;

       (2) against any person who acted at the behest of federal agencies, contractors, or employees that are carrying out duties pursuant to federal law, if the imposition of liability would violate the doctrines of preemption or intergovernmental immunity;

       (3) by any person who impregnated the woman who used abortion-inducing drugs through an act of rape, sexual assault, or incest, or by anyone who acts in concert or participation with that person;

       (4) against a physician or a healthcare professional licensed by this State, unless the plaintiff pleads and proves that the physician or healthcare professional:

           (a) knowingly performed or induced an abortion in violation of the laws of this State; or

           (b) knowingly aided or abetted an abortion that was performed or induced in violation of the laws of this State;

       (5) against a common carrier, a pharmaceutical manufacturer, a pharmaceutical distributor, or a pharmacy located in this State and licensed by the South Carolina Board of Pharmacy, unless the plaintiff pleads and proves that the defendant;

           (a) failed to take reasonable precautions to ensure that it would not engage in the conduct described in subsection (A); or

           (b) failed to adopt and implement a policy to not distribute, mail, transport, deliver, provide, or possess abortion-inducing drugs other than for one or more of the purposes described in Section 44-41-820(6).

    (L) Notwithstanding any other provision of law, including Chapter 2, Title 36, the courts of this State have personal jurisdiction over any defendant sued pursuant to this section to the maximum extent permitted by the Fourteenth Amendment to the United States Constitution, and service may be made outside the State.

    (M) Notwithstanding any other provision of law, the law of South Carolina shall apply to any abortion performed, induced, or attempted by or upon a resident or citizen of South Carolina, regardless of where that abortion or attempted abortion occurs, and to any civil action brought pursuant to this section, to the maximum extent permitted by federal law and the Constitution of South Carolina. Notwithstanding any other provision of law, any contractual choice-of-law provision that requires or purports to require application of the laws of a different jurisdiction is void as against public policy and is not enforceable in any court.

    (N) Notwithstanding any other provision of law, a civil action pursuant to this section is not subject to any provision of Chapter 32, Title 1.

    (O) Notwithstanding any other provision of law, including Rule 23 of the South Carolina Rules of Civil Procedure, a civil action brought pursuant to this section may not be litigated on behalf of a plaintiff class or a defendant class, and no court may certify a class pursuant to Rule 23 of the South Carolina Rules of Civil Procedure in any civil action brought pursuant to this section.

 

    Section 44-41-850. (A) A person, other than this State, a political subdivision of this State, or an officer or employee of this State or of a political subdivision of this State, has standing to bring and may bring a qui tam action against any person who:

       (1) violates Section 44-41-830; or

       (2) intends to violate Section 44-41-830.

    (B) An action brought pursuant to this section must be brought in the name of the qui tam relator, who is an assignee of this state's claim for relief. Notwithstanding any other law, the transfer of this state's claim to the qui tam relator is absolute, with the State retaining no interest in the subject matter of the claim.

    (C) A qui tam relator may not bring an action pursuant to this section if the action is preempted by 47 U.S.C. Section 230(c).

    (D) Notwithstanding any other provision of law and except as provided by subsection (E), if a qui tam relator prevails in an action brought pursuant to this section, the court shall award to the relator:

       (1) injunctive relief sufficient to prevent the defendant from violating Section 44-41-830;

       (2) an amount of not less than one hundred thousand dollars for each violation of Section 44-41-830; and

       (3) costs and reasonable attorney's fees.

    (E) A court may not award relief pursuant to subsection (D)(2) or (3) in response to a violation of Section 44-41-830 if the defendant demonstrates that:

       (1) a court previously ordered the defendant to pay an amount pursuant to subsection (D)(2) in another action for that particular violation of Section 44-41-830; and

       (2) the court order described by item (1) has not been vacated, reversed, or overturned.

    (F) It is an affirmative defense to a qui tam action brought pursuant to this section that the defendant:

       (1) was unaware the defendant was engaged in the conduct prohibited by Section 44-41-830; and

       (2) took reasonable precautions to ensure the defendant would not violate Section 44-41-830.

    The defendant has the burden of proving an affirmative defense pursuant to this subsection by a preponderance of the evidence.

    (G) Notwithstanding any other provision of law, a person may bring an action pursuant to this section no later than the thirtieth anniversary of the date the cause of action accrues.

    (H) Notwithstanding any other law, the following are not a defense to a qui tam action brought pursuant to this section:

       (1) a defendant's ignorance or mistake of law, including a defendant's mistaken belief that the requirements or provisions of this article are unconstitutional or were unconstitutional;

       (2) a defendant's reliance on a court decision that has been vacated, reversed, or overruled on appeal or by a subsequent court, even if the court decision had not been vacated, reversed, or overruled when the cause of action accrued;

       (3) a defendant's reliance on a state or federal court decision that is not binding on the court in which the action has been brought;

       (4) a defendant's reliance on a federal agency rule or action that has been repealed, superseded, or declared invalid or unconstitutional, even if the federal agency rule or action had not been repealed, superseded, or declared invalid or unconstitutional when the cause of action accrued;

       (5) the laws of another state or jurisdiction, including an abortion shield law, unless the South Carolina Constitution or federal law compels the court to enforce that law;

       (6) nonmutual issue preclusion or nonmutual claim preclusion;

       (7) sovereign immunity, governmental immunity, or official immunity, other than sovereign immunity, governmental immunity, or official immunity applicable to:

           (a) a hospital owned and operated by the State that facilitates or makes available abortion-inducing drugs solely for purposes that do not include performing, inducing, attempting, assisting, or aiding or abetting an illegal abortion; or

           (b) a political subdivision, including a hospital district, that facilitates or makes available abortion-inducing drugs solely for purposes that do not include performing, inducing, attempting, assisting, or aiding or abetting an illegal abortion;

       (8) a claim that the enforcement of this article or the imposition of civil liability against the defendant violates the constitutional or federally protected rights of third parties, except as provided by Section 44-41-860; or

       (9) consent to the abortion by the claimant or the unborn child's mother.

    (I) Notwithstanding any other provision of law, any waiver or purported waiver of the right to sue pursuant to this section is void as against public policy and is not enforceable in any court.

    (J) Notwithstanding any other provision of law, a qui tam action pursuant to this section may not be brought:

       (1) against a woman for using, obtaining, or seeking to obtain abortion-inducing drugs to abort or attempt to abort her unborn child;

       (2) against a person acting under the direction of a federal agency, contractor, or employee who is carrying out a duty pursuant to federal law if the imposition of liability would violate the doctrine of preemption or intergovernmental immunity;

       (3) by any person who has committed a sex crime as defined in Article 7, Chapter 3, Title 16, or by another person who acts in concert or participation with such a person;

       (4) against a person described in Section 44-41-820; or

       (5) against a common carrier that took every reasonable precaution to ensure that it would not manufacture, distribute, mail, transport, deliver, prescribe, provide, possess, or aid or abet the manufacture, distribution, mailing, transportation, delivery, prescription, provision, or possession of abortion-inducing drugs for the purpose of performing, inducing, attempting, or assisting an illegal abortion, including by adopting a policy that it will not manufacture, distribute, mail, transport, deliver, prescribe, provide, possess, or aid or abet the manufacture, distribution, mailing, transportation, delivery, prescription, provision, or possession of abortion-inducing drugs for this purpose.

    (K) Notwithstanding any other provision of law, including Chapter 2, Title 36, the courts of this State have personal jurisdiction over any defendant sued pursuant to this section to the maximum extent permitted by the Fourteenth Amendment to the United States Constitution, and service may be made outside the State.

    (L) Notwithstanding any other provision of law, the law of South Carolina applies to any abortion performed, induced, or attempted by or upon a resident or citizen of South Carolina, regardless of where that abortion or attempted abortion occurs, and to any qui tam action brought pursuant to this section, to the maximum extent permitted by federal law and the Constitution of South Carolina. Notwithstanding any other provision of law, any contractual choice-of-law provision that requires or purports to require application of the laws of a different jurisdiction is void as against public policy and is not enforceable in any court.

    (M) Notwithstanding any other provision of law, a qui tam action brought pursuant to this section is not subject to any provision of Chapter 32, Title 1.

    (N) Notwithstanding any other provision of law, including Rule 23 of the South Carolina Rules of Civil Procedure, a qui tam action brought pursuant to this section may not be litigated on behalf of a plaintiff class or a defendant class, and no court may certify a class pursuant to Rule 23 of the South Carolina Rules of Civil Procedure in any qui tam action brought pursuant to this section.

 

    Section 44-41-860. (A)(1) A defendant against whom an action is brought pursuant to Section 44-41-840 or Section 44-41-850 may assert an affirmative defense to liability pursuant to this section if:

       (a) the imposition of civil liability on the defendant violates constitutional or federally protected rights that belong to the defendant personally; or

       (b) the defendant:

           (i) has standing to assert the rights of a third party under the tests for third-party standing established by the Supreme Court of the United States; and

           (ii) demonstrates that the imposition of civil liability on the defendant will violate constitutional or federally protected rights belonging to that third party; or

       (c) the imposition of civil liability on the defendant will violate the South Carolina Constitution, as interpreted by the Supreme Court of South Carolina.

       (2) The defendant shall bear the burden of proving the affirmative defense in item (1) by a preponderance of the evidence.

    (B) Nothing in this section or article limits or precludes a defendant from asserting the unconstitutionality of any provision or application of South Carolina law as a defense to liability pursuant to Section 44-41-840, or from asserting any other defense that might be available under any other source of law.

    (C) Notwithstanding any other provision of law, no court may apply the law of another state or jurisdiction to any civil action brought pursuant to Section 44-41-840, unless federal law or the Constitution of South Carolina compels it to do so. Notwithstanding any other provision of law, any contractual choice-of-law provision that requires or purports to require application of the laws of a different jurisdiction is void as against public policy and is not enforceable in any court.

 

    Section 44-41-870. (A) Notwithstanding any other provision of law, including Chapter 7, Title 15, an action brought pursuant to Section 44-41-840 or Section 44-41-850 may be brought in:

       (1) the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;

       (2) the county of residence for any one of the natural person defendants at the time the cause of action accrued;

       (3) the county of the principal office in this State of any one of the defendants that is not a natural person; or

       (4) the county of residence for the claimant if the claimant is a natural person residing in this State.

    (B) If an action is brought pursuant to Section 44-41-840 or Section 44-41-850 in any one of the venues described in subsection (A), the action may not be transferred to a different venue without the written consent of all parties.

    (C) Any contractual choice-of-forum provision that purports to require an action brought pursuant to Section 44-41-840 or Section 44-41-850 to be litigated in a particular forum is void as against public policy and may not be enforced in any state or federal court.

 

    Section 44-41-880. Notwithstanding any other provision of law, the requirements of this article are enforceable exclusively through the private civil actions described in Section 44-41-840 or the qui tam actions described in Section 44-41-850. No direct or indirect enforcement of this article may be taken or threatened by the State, a political subdivision, a district or county attorney, or any officer or employee of this State or a political subdivision against any person or entity, by any means whatsoever, and no violation of this article may be used to justify or trigger the enforcement of any other law or any type of adverse consequence under any other law, except through the private civil actions described in Section 44-41-840 or the qui tam actions described in Section 44-41-850. This section does not preclude or limit the enforcement of any other law or regulation against conduct that is independently prohibited by the other law or regulation, and that would remain prohibited by the other law or regulation in the absence of this article.

 

    Section 44-41-890. (A) Notwithstanding any other provision of law, this State, a political subdivision of this State, or an officer or employee of this State or of a political subdivision of this State may not:

       (1) act in concert or participation with a claimant bringing an action pursuant to Section 44-41-840 or Section 44-41-850;

       (2) establish or attempt to establish any type of agency or fiduciary relationship with a claimant bringing an action pursuant to Section 44-41-840 or Section 44-41-850;

       (3) attempt to control or influence a person's decision to bring an action pursuant to Section 44-41-840 or Section 44-41-850 or that person's conduct of the litigation; or

       (4) intervene in an action brought pursuant to Section 44-41-840 or Section 44-41-850.

    (B) This section does not prohibit this State, a political subdivision of this State, or an officer or employee of this State or of a political subdivision of this State from filing an amicus curiae brief in an action brought pursuant to Section 44-41-840 or Section 44-41-850 if this State, the political subdivision, the officer, or the employee does not act in concert or participation with the claimant who brings the action.

 

    Section 44-41-900. Notwithstanding any other provision of law, a court may not award costs or attorney's fees to a defendant against whom an action is brought pursuant to Section 44-41-840 or Section 44-41-850 except:

       (1) in response to frivolous, malicious, or bad-faith conduct; or

       (2) as required by federal law.

 

    Section 44-41-910. (A) For purposes of this section, "claw-back provision" refers to any law of another state or jurisdiction that authorizes the bringing of a civil action against a person for:

       (1) bringing or engaging in an action authorized by this article, including Section 44-41-840 or Section 44-41-850

       (2) bringing or engaging in an action that alleges a violation of the abortion laws of this State;

       (3) attempting, intending, or threatening to bring or engage in an action described by item (1) or (2); or

       (4) providing legal representation or any type of assistance to a person who brings or engages in an action described by item (1) or (2).

    (B) Notwithstanding any other provision of law and except as otherwise provided by federal law or the South Carolina Constitution, the laws of this State apply to:

       (1) conduct described by subsection (A);

       (2) an action brought against a person for engaging in conduct described by subsection (A);

       (3) an action brought pursuant to a claw-back provision against a resident of this State; and

       (4) an action brought pursuant to subsection (F).

    (C) Notwithstanding any other provision of law, in an action described by subsection (A)(1), the court shall, on request, issue a temporary, preliminary, or permanent injunction that restrains each defendant in the action, each person in privity with the defendant, and each person with whom the defendant is in active concert or participation from:

       (1) bringing an action pursuant to any claw-back provision against a claimant or prosecutor, a person in privity with the claimant or prosecutor, or a person providing legal representation or any type of assistance to the claimant or prosecutor; and

       (2) continuing to litigate an action pursuant to any claw-back provision that has been brought against a claimant or prosecutor, a person in privity with the claimant or prosecutor, or a person providing legal representation or any type of assistance to the claimant or prosecutor.

    (D) Notwithstanding any other provision of law, the doctrines of res judicata and collateral estoppel preclude a defendant against whom a judgment is entered in an action described by subsection (A)(1) and each person in privity with the defendant from litigating or relitigating any claim or issue pursuant to any claw-back provision against a claimant, prosecutor, or person in privity with the claimant or prosecutor that was raised or could have been raised as a claim, crossclaim, counterclaim, or affirmative defense pursuant to the federal or state rules of civil procedure.

    (E) Notwithstanding any other provision of law, a court of this State may not enforce an out-of-state judgment obtained in an action brought pursuant to a claw-back provision unless federal law or the South Carolina Constitution requires the court to enforce the judgment.

    (F) Notwithstanding any other provision of law, if an action is brought or judgment is entered against a person pursuant to a claw-back provision based wholly or partly on the person's decision to engage in conduct described by subsection (A), that person is entitled to injunctive relief and damages from any person who brought the action or obtained the judgment or who sought to enforce the judgment. Notwithstanding any other provision of law, the relief described by this subsection must include:

       (1) compensatory damages, including money damages in an amount equal to the judgment damages and costs, expenses, and reasonable attorney's fees spent in defending the action;

       (2) costs, expenses, and reasonable attorney's fees incurred in bringing an action pursuant to this subsection;

       (3) additional amounts consisting of the greater of:

           (a) twice the sum of the damages, costs, expenses, and fees described by items (1) and (2); or

           (b) one hundred thousand dollars; and

       (4) injunctive relief that restrains each person who brought the action pursuant to the claw-back provision, each person in privity with the person, and each person acting in concert or participation with the person from:

           (a) bringing further actions pursuant to any claw-back provision against the person against whom the action was brought, each person in privity with the person, or any person providing legal representation or any type of assistance to the person;

           (b) continuing to litigate any actions brought pursuant to a claw-back provision against the persons described by subitem (a); and

           (c) enforcing or attempting to enforce any judgment obtained in any actions brought pursuant to a claw-back provision against the persons described by subitem (a).

    (G) It is not a defense to an action brought pursuant to subsection (F) that:

       (1) the claimant failed to seek recovery pursuant to subsection (F) in an action brought against the claimant pursuant to a claw-back provision; or

       (2) a court in a preceding action brought against the claimant declined to recognize or enforce subsection (F) or held any provision of that subsection invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrines of issue or claim preclusion.

 

    Section 44-41-920. (A) Notwithstanding any other provision of law, a person, including an entity, attorney, or law firm, that seeks declaratory or injunctive relief to prevent a person, including this State, a political subdivision of this State, or an officer, employee, or agent of this State or of a political subdivision of this State, from enforcing or bringing an action to enforce a law, including a statute, ordinance, rule, or regulation, that regulates or restricts abortion or that limits taxpayer funding for persons performing or promoting abortions in any state or federal court, or who represents a litigant seeking such relief in any state or federal court, is jointly and severally liable to pay the costs and reasonable attorney's fees of the prevailing party in the action seeking declaratory or injunctive relief, including the costs and reasonable attorney's fees the prevailing party incurs in its efforts to recover costs and fees.

    (B) For purposes of this section, a party is considered a prevailing party if:

       (1) a state or federal court dismisses a claim or cause of action brought against the party by a litigant that seeks the declaratory or injunctive relief described by subsection (A), regardless of the reason for the dismissal;

       (2) a state or federal court enters judgment in the party's favor on that claim or cause of action; or

       (3) the litigant that seeks the declaratory or injunctive relief described by subsection (A) voluntarily dismisses or nonsuits its claims against the party pursuant to Rule 41, Federal Rules of Civil Procedure, Rule 41, South Carolina Rules of Civil Procedure, or any other procedural rule.

    (C) A prevailing party may recover costs and reasonable attorney's fees pursuant to this section only to the extent that those costs and attorney's fees were incurred while defending claims or causes of action on which the party prevailed.

    (D) Regardless of whether a prevailing party sought to recover costs or attorney's fees in the underlying action, a prevailing party in an action brought pursuant to this section may bring a civil action to recover costs and attorney's fees against a person, including an entity, attorney, or law firm, who sought declaratory or injunctive relief described by subsection (A) no later than the third anniversary of the date on which, as applicable:

       (1) the dismissal or judgment described by subsection (B) becomes final on the conclusion of appellate review; or

       (2) the time for seeking appellate review expires.

    (E) It is not a defense to a civil action brought pursuant to subsection (D) that:

       (1) a prevailing party failed to seek recovery of costs or attorney's fees in the underlying action;

       (2) the court in the underlying action declined to recognize or enforce this section; or

       (3) the court in the underlying action held that any provisions of this section are invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrine of issue or claim preclusion.

    (F) Notwithstanding any other provision of law, including Chapter 7, Title 15, a civil action brought pursuant to subsection (D) may be brought in:

       (1) the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;

       (2) the county of residence of a defendant at the time the cause of action accrued, if the defendant is an individual;

       (3) the county of the principal office in this State of a defendant that is not an individual; or

       (4) the county of residence of the claimant, if the claimant is an individual residing in this State.

    (G) If a civil action is brought pursuant to subsection (D) in a venue described by subsection (F), the action may not be transferred to a different venue without the written consent of all parties.

    (H) Notwithstanding any other provision of law, any contractual choice-of-forum provision that purports to require a civil action pursuant to subsection (D) be litigated in another forum is void based on this State's public policy and is not enforceable in any state or federal court.

 

    Section 44-41-930. (A) Notwithstanding any other provision of law, the State and each of its subdivisions, and each of their officers and employees shall have sovereign immunity, governmental immunity, and official immunity, as appropriate, in any action, claim, counterclaim, or any type of legal or equitable action that challenges the validity or enforceability of any provision or application of this article, on constitutional grounds or otherwise, or that seeks to prevent or enjoin the State or its political subdivisions, or any of their officers, employees, or agents, from enforcing any provision or application of this article, or from hearing, adjudicating, or docketing an action brought pursuant to Section 44-41-840 or Section 44-41-850, unless that immunity has been abrogated or preempted by federal law in a manner consistent with the Constitution of the United States. The sovereign immunity conferred by this section upon the State and each of its officers and employees includes the constitutional sovereign immunity recognized by the Supreme Court of the United States in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), and Alden v. Maine, 527 U.S. 706 (1999), which applies in both state and federal court, and which may not be abrogated by Congress or by any state or federal court except pursuant to legislation authorized by Section 5 of the Fourteenth Amendment, by the Bankruptcy Clause of Article I, by Congress's powers to raise and support Armies and to provide and maintain a Navy, or by any other ground that might be recognized by the Supreme Court of the United States.

    (B) Notwithstanding any law, the immunities conferred by subsection (A) apply in every court, both state and federal, and in every adjudicative proceeding of any type whatsoever.

    (C) Notwithstanding any other provision of law to the contrary, no provision of state law may be construed to waive or abrogate an immunity described in subsection (A) unless it expressly waives or abrogates immunity with specific reference to this section.

    (D) Notwithstanding any other provision of law to the contrary, no attorney representing the State, its political subdivisions, or any officer, employee, or agent of this State or of a political subdivision is authorized or permitted to waive an immunity described in subsection (A) or take any action that would result in a waiver of that immunity, and any such action or purported waiver must be regarded as a legal nullity and an ultra vires act.

    (E) Notwithstanding any other provision of law, including Chapter 53, Title 15, no court of this State may award declaratory relief that would pronounce any provision or application of this article invalid or unconstitutional, or that would restrain or prevent the State, its political subdivisions, any officer, employee, or agent of this State or of a political subdivision, or any person from implementing or enforcing any provision or application of this article, or from hearing, adjudicating, docketing, or filing an action brought pursuant to Section 44-41-840 or Section 44-41-850.

    (F) Nothing in this section or article may be construed to prevent a litigant from asserting the invalidity or unconstitutionality of any provision or application of this article as a defense to any action, claim, or counterclaim brought against that litigant.

    (G) Notwithstanding any other provision of law, including Rule 23 of the South Carolina Rules of Civil Procedure, no court may certify a plaintiff or defendant class with respect to any claim that seeks declaratory or injunctive relief, or any type of stay or writ, that would pronounce any provision or application of this article invalid or unconstitutional, or that would restrain or prevent the State, its political subdivisions, any officer, employee, or agent of this State or of a political subdivision, or any person from enforcing any provision or application of this article, or from hearing, adjudicating, docketing, or filing an action brought pursuant to Section 44-41-840 or Section 44-41-850.

 

SECTION 2.  Chapter 41, Title 44 of the S.C. Code is amended by adding:

 

Article 10

 

Prohibited Abortion Assistance Activities

 

    Section 44-41-1010.  For purposes of this article:

       (1) "Abortion" means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child. Such use, prescription, or means is not an abortion if done with the intent to save the life or preserve the health of the unborn child, or to remove a dead unborn child.

       (2) "Abortion fund" means a person, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity that exists for the purpose of aiding or abetting elective abortions, and that pays for, reimburses, or subsidizes in any way the costs associated with obtaining an elective abortion.

       (3) "Elective abortion" means any abortion other than those performed or induced in response to a medical emergency by a licensed physician.

       (4) "Human being" or "human" means an individual member of the species Homo sapiens at any stage of development beginning at fertilization.

       (5) "Medical emergency" means in reasonable medical judgment, a condition exists that has complicated the pregnant woman's medical condition and necessitates an abortion to prevent death or serious risk of a substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. A condition must not be considered a medical emergency if based on a claim or diagnosis that a woman will engage in conduct that she intends to result in her death or in a substantial and irreversible physical impairment of a major bodily function.

       (6) "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

       (7) "Unborn child" means an individual organism of the species Homo sapiens in any stage of gestation from fertilization until live birth.

       (8) "Woman" and "women" include any person whose biological sex is female, including any person with XX chromosomes and any person with a uterus, regardless of any gender identity that the person attempts to assert or claim.

 

    Section 44-41-1020.  (A) It is unlawful for any person to knowingly pay for or reimburse the costs associated with obtaining an abortion performed on a citizen or resident of South Carolina that would be unlawful if performed in this State. This prohibition in this section applies regardless of:

       (1) the person upon whom the abortion is performed;

       (2) the location of the abortion;

       (3) the law of the jurisdiction in which the abortion occurs; and

       (4) whether the payments or reimbursements are provided directly or laundered through an intermediary.

       (B) Under no circumstance may the pregnant or formerly pregnant woman upon whom the abortion was performed or attempted be subject to prosecution or penalty pursuant to this section.

       (C) This section applies extraterritorially to the maximum extent permitted by the federal law and the Constitution of South Carolina but does not apply to conduct that this State is forbidden to regulate pursuant to federal law and the Constitution of South Carolina.

       (D) A person violating this section is guilty of a felony and, upon conviction, must be imprisoned for not more than five years.

 

    Section 44-41-1030.  (A) Except as provided by subsection (C), it is unlawful for any abortion fund to:

       (1) pay for, reimburse, or subsidize in any way the costs associated with an abortion performed on a citizen or resident of South Carolina, regardless of where that abortion occurs; or

       (2) solicit or accept money, digital currency, resources, any type of work or services, or any other thing of value from a citizen or resident of South Carolina.

    (B) Except as provided by subsection (C), it is unlawful for any citizen or resident of South Carolina to:

       (1) offer, provide, or lend money, digital currency, resources, or any other thing of value to an abortion fund; or

       (2) perform or provide any type of work or services for an abortion fund, regardless of whether such work or services is done on a paid, contract, or volunteer basis, other than legal counsel or representation provided by an attorney or law firm.

    (C) Notwithstanding any other law, subsections (A) and (B) do not prohibit:

       (1) speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the Supreme Court of the United States' interpretations of the Fourteenth Amendment of the United States Constitution;

       (2) conduct that this State is forbidden to regulate pursuant to federal law or the South Carolina Constitution;

       (3) the provision of basic public services, including fire and police protection and utilities, by a governmental entity or a common carrier to an abortion fund, in the same manner as the governmental entity or common carrier provides those services to the general public; or

       (4) conduct taken at the behest of federal agencies, contractors, or employees that are carrying out duties pursuant to federal law, if a prohibition on that conduct would violate the doctrines of preemption or intergovernmental immunity.

    (D) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be imprisoned for not more than three years.

    (E) The Attorney General has a cause of action to seek civil forfeiture of the assets of any abortion fund that violates this section.

 

SECTION 3.  If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 4.  This act takes effect upon approval by the Governor.

----XX----