A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING ARTICLE 8 TO CHAPTER 41, TITLE 44 SO AS TO CREATE CRIMES AND ASSOCIATED PENALTIES REGARDING THE USE OF ABORTION-INDUCING DRUGS, WITH EXCEPTIONS; BY AMENDING SECTION 44-53-250, RELATING TO SCHEDULE IV CONTROLLED SUBSTANCES, SO AS TO ADD MIFEPRISTONE AND MISOPROSTOL; AND BY AMENDING SECTION 44-53-370, RELATING TO CONTROLLED SUBSTANCE OFFENSES AND PENALTIES, SO AS TO CREATE CRIMINAL PENALTIES FOR POSSESSION OF MIFEPRISTONE AND MISOPROSTOL, WITH EXCEPTIONS.

 

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

 

Abortion-Inducing Drug Prohibitions

 

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

    (1) "Abortion" or "induced abortion" has the same meaning as the term "abortion" in Section 44-41-610.

    (2)(a) "Abortion-inducing drug" means any drug or chemical, or any combination of drugs or chemicals, or any other substance when used with the intent to cause an abortion including, but not limited to, RU-486, the Mifeprex regimen, misoprostol (Cytotec), or methotrexate.

       (b) "Abortion-inducing drug" does not mean a contraceptive, an emergency contraceptive, or the use of methotrexate to treat an ectopic pregnancy.

    (3) "Great bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

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

    (5) "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.

    (6) "Medical emergency" has the same meaning as defined in Section 44-41-610.

    (7) "Pregnant" has the same meaning as defined in Section 44-41-610.

    (8) "Unlawful abortion" means any abortion not authorized pursuant to South Carolina state law.

 

    Section 44-41-820. (A) It is unlawful for any person to knowingly cause an abortion to occur by means of delivering, dispensing, distributing, or providing a pregnant woman with an abortion-inducing drug.

       (B)(1) Any person who knowingly performs an abortion by means of an abortion-inducing drug in violation of this section is guilty of a felony and, upon conviction, must be imprisoned for not more than five years, or fined not more than fifty thousand dollars, or both.

       (2) Any person who knowingly performs an abortion by means of an abortion-inducing drug in violation of this section that results in the death or the substantial and irreversible impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman is guilty of a felony and, upon conviction, must be imprisoned for not more than ten years, or fined not more than seventy-five thousand dollars, or both.

       (3) Any person who knowingly performs an abortion by means of an abortion-inducing drug in violation of this section that results in the death or the substantial and irreversible impairment of a major bodily function, not including psychological or emotional conditions, of a pregnant woman under the age of eighteen is guilty of a felony and, upon conviction, must be imprisoned for not more than fifty years, or fined not more than one hundred thousand dollars, or both.

    (C) None of the following shall be construed to create the crime of criminal abortion by means of an abortion-inducing drug:

       (1) any action taken when a physician or other licensed medical professional is acting in the course of administering lawful medical care;

       (2) any act taken or omission by a pregnant woman with regard to her own unborn child;

       (3) possessing for her own consumption or consuming an abortion-inducing drug by a pregnant woman in violation of this section;

       (4) lawfully prescribing, dispensing, or distributing a drug, medicine, or other substance for a bona fide medical reason that is not intended to cause an abortion in violation of this section;

       (5) the act of administering an abortion-inducing drug when the drug is administered by a physician licensed by the South Carolina Board of Medical Examiners who administers the abortion-inducing drug in person to the pregnant woman when such administration is otherwise lawful pursuant to South Carolina law; provided, however, the provisions of this item are not a defense against prosecution under any other provision of law that makes the abortion unlawful, whether the other provision of law is in effect on the effective date of this article, or becomes unlawful at a later date; or

       (6) any act by a licensed pharmacist or pharmacy related to filling a prescription for a drug, medicine, or other substance prescribed for a bona fide medical reason; provided, however, a diagnosis or a diagnosis code must be written on the prescription by the prescriber indicating that the drug, medicine, or other substance is intended for a purpose other than to cause an abortion in violation of this section.

 

    Section 44-41-830. (A) It is unlawful for any person to knowingly and intentionally engage in the use of an abortion-inducing drug on a pregnant woman, without her knowledge or consent, with the intent to cause an abortion.

    (B)(1) Except as provided in item (2), a person who violates subsection (A) is guilty of a felony and, upon conviction, must be imprisoned for not more than ten years, or fined not more than seventy-five thousand dollars, or both.

       (2) If the unborn child is more than three months of gestational age when a person violates subsection (A), the person is guilty of a felony and, upon conviction, must be imprisoned for not more than twenty years, or fined not more than one hundred thousand dollars, or both.

    (C) The prosecution of a person pursuant to this section is not a defense against the prosecution under any other provision of law, including murder or attempted murder, should the person violate subsection (A) and the use of an abortion-inducing drug results in the death or the substantial and irreversible impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman.

 

    Section 44-41-840. (A) Any person or entity is subject to strict liability for damages from the harm caused to the mother or unborn child who:

       (1) manufactures, mails, distributes, transports, delivers, or provides an abortion-inducing drug; or aids or abets the performance, induction, or attempted abortion, or the manufacture, mailing, distribution, transportation, delivery, or provision of abortion-inducing drugs, and

       (2) whose product or conduct directly results in great bodily injury or death to the mother or unborn child, as defined in Section 44-41-610, in violation of Chapter 41, Title 44.

    (B)(1) A civil action may be brought pursuant to this section by the mother of the unborn child; the father of the unborn child, including the biological father regardless of marital status; the grandparents of the unborn child; the siblings of the unborn child; or the legal guardians of the unborn child's mother if the mother has not reached the age of the majority.

       (2) An action filed pursuant to this section may be brought individually or jointly. The right of any one eligible party to sue is not contingent upon or barred by another eligible party's decision not to sue.

    (C)(1) Any plaintiff may recover compensatory damages for bodily injury, emotional distress, and financial losses; punitive damages for wilful or reckless conduct; reasonable attorney's fees and court costs; and any other equitable relief deemed appropriate by the court, provided that the damages are not duplicative.

       (2) Notwithstanding any other provision of law, the commencement of a civil action pursuant to this section shall not be construed to limit, waive, or otherwise impair the right of any plaintiff to pursue claims under any other theory of liability including, without limitation, claims for survival or wrongful death pursuant to Chapter 51, Title 15, or any other applicable provision of law, provided that any damages awarded under an alternative theory are not duplicative.

    (D) Any action brought pursuant to this section must be commenced within three years from the date the plaintiff knew or reasonably should have known the great bodily injury or death was caused by the drug.

    (E)(1) A South Carolina court may exercise personal jurisdiction over any person or entity, whether acting directly or through an agent, that violates this section, regardless of location, that:

           (a) manufactures, mails, distributes, transports, delivers, or provides abortion-inducing drugs, or aids and abets the performance, induction, or attempted abortion, or the manufacture, mailing, distribution, transportation, delivery, or provision of abortion-inducing drugs to another person the person or entity knows or reasonably should know is physically located in South Carolina, thereby transacting business in the State;

           (b) commits an act in whole or in part in this State by intentionally directing into South Carolina any abortion-inducing drug in violation of state law, or by purposefully providing remote services into South Carolina that directly result in the unlawful use of abortion-inducing drugs or injury in this State;

           (c) causes injury in this State by an act or omission outside this State, if the person or entity regularly delivers, mails, ships, distributes, markets, solicits, or provides abortion-inducing drugs or related services into South Carolina, or otherwise engages in a persistent course of conduct purposefully directed at South Carolina;

           (d) produces, manufactures, or distributes goods with the reasonable expectation that the goods will be used or consumed in this State, and the abortion-inducing drugs are in fact used or consumed in South Carolina in violation of South Carolina law; or

           (e) aids or abets any person in committing any of the acts described in subitems (a) to (d).

       (2) When jurisdiction over a person or entity is based solely on this subsection, only a cause of action arising from the conduct enumerated in this subsection may be asserted.

       (3) Notwithstanding any other provision of law, including Chapter 2, Title 36, the courts of this State shall exercise personal jurisdiction over any person or entity for claims arising pursuant to this section to the fullest extent permitted by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Service of process may be made outside this State in accordance with applicable law.

    (F) Notwithstanding any other provision of law, this section 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, 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;

       (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;

       (6) a provider or user of an interactive computer service if the lawsuit would be preempted by 47 U.S.C. Section 230(c);

       (7) 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) any purpose that does not include performing, inducing, attempting, or assisting an unlawful abortion;

       (8) 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 of abortion-inducing drugs, in the same manner as the governmental entity or common carrier provides those services to the general public; or

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

    (G) 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; or

       (5) 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 subsection (F)(7).

    (H) 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 that acted at the behest of federal agencies, contractors, or employees that are carrying out duties under 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 such a person;

       (4) against a physician or a healthcare professional licensed by this State, except where the plaintiff pleads and proves the violations described in subsection (F)(2); or

       (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 this section; 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 subsection (F)(7).

 

SECTION 2.  Section 44-53-250 of the S.C. Code is amended by adding:

 

    (h) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances, including their salts, isomers (whether position, geometric, or optical), and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

       (1) Mifepristone

       (2) Misoprostol

 

SECTION 3.  Section 44-53-370 of the S.C. Code is amended by adding:

 

    (h)(1) It is unlawful for any person knowingly or intentionally to possess mifepristone or misoprostol, unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, or as provided in Section 44-53-360, while acting in the course of the person's professional practice or except as authorized by this subsection.

       (2) A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, must be imprisoned for not more than five years, or fined not more than five thousand dollars, or both.

       (3) It is not a violation of this subsection for a pregnant woman to possess mifepristone or misoprostol for her own consumption.

 

SECTION 4.  The South Carolina Board of Pharmacy is directed to notify all pharmacists in South Carolina about the provisions of this law and that lawful prescriptions for mifepristone and misoprostol may be filled in accordance with this act.

 

SECTION 5.  The South Carolina Department of Public Health is directed to notify all healthcare practitioners and providers in South Carolina about the provisions of this law and that mifepristone and misoprostol may be prescribed and administered in accordance with this act.

 

SECTION 6.  The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.  After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

 

SECTION 7.  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 8.  This act takes effect upon approval by the Governor.

----XX----