Testimony Opposing South Carolina’s Proposed Total Abortion Ban, S.988

Testimony Opposing South Carolina’s Proposed Total Abortion Ban, S.988

On January 24, 2022, NAPW submitted written testimony in opposition to South Carolina’s proposed abortion ban, S.988. The so-called “Equal Protection for Unborn Babies Act” is a trigger ban, meaning it would go into effect immediately if the U.S. Supreme Court overturns Roe v. Wade, in part or whole. The bill defines an “unborn baby” as an “individual human being from fertilization until live birth.” It prohibits all abortions in any form except in three very specific circumstances: “saving the life or preserving the health of an unborn baby,” “removing a dead baby caused by a spontaneous abortion” (miscarriage or stillbirth), and “treating an ectopic pregnancy.”

Anyone who "performs or attempts" an abortion outside of these reasons could face conviction for murder or attempted murder. This includes the pregnant person, in addition to abortion providers and other healthcare workers. A murder conviction could result in the death penalty under South Carolina law.

South Carolina was the first state to permit the prosecution of a woman in relation to her own pregnancy, and it remains in the extreme minority position as one of only three jurisdictions in the United States to have judicially expanded its criminal child endangerment or neglect statutes to prosecute women for their alleged actions during pregnancy. Women have already been criminalized in South Carolina as a result of pregnancy or pregnancy outcomes. If this bill passes, the criminal prosecution of pregnant people will undoubtedly increase, which is certain to endanger the rights, health, and lives of everyone in the state with the capacity for pregnancy.

Read the full testimony below or download a PDF version. For press inquiries, please contact media@advocatesforpregnantwomen.org

Testimony of National Advocates for Pregnant Women to the Medical Affairs Committee of the South Carolina Senate in Opposition to S.988

Thank you for the opportunity to address this Committee.On behalf of National Advocates for Pregnant Women (NAPW), we respectfully submit this written testimony in opposition to a S.988. We are a non-partisan legal advocacy organization dedicated to the welfare of pregnant people and their families. Our testimony draws on over 20 years of work on cases in which state actors intervened in a pregnant woman’s medical decision making or punished a pregnant woman on the basis or for the outcome of her pregnancy. It is a myth that women will not be prosecuted if you ban abortion. Women were criminalized for the
outcomes of their pregnancies before Roe v. Wade and are still being criminalized for those outcomes today.

Our message is simple: If abortion is banned, all pregnant women—including those who do not seek or have abortions—will increasingly be criminally prosecuted because they are pregnant. They will be prosecuted not just for abortions but also for miscarriages, stillbirths and for refusing cesarean surgeries. They will also be forced into other unwanted medical interventions because you, their elected representatives, are choosing to elevate the protection of fertilized eggs, embryos
and fetuses over the well-being of the pregnant woman.

The Consequences of Criminalizing Abortions and Attempted Abortions Would Be Far-Reaching and Disastrous for All Pregnant Women, Including Those Who Want To Continue Their Wanted Pregnancies to Term.

The “Equal Protection for Unborn Babies Act” will lead to greater criminal prosecution of women who want to carry their pregnancies to term but experience poor pregnancy outcomes that are beyond their control, as in the case of Regina McKnight and many others who were prosecuted for homicide in South Carolina on the basis of a miscarriage and other obstetric emergencies.[1] Such prosecutions arise out of the dangerous and medically inaccurate myth that pregnancy outcomes and child health are solely or even primarily the result of the actions or inactions of any individual pregnant woman. Fifteen to twenty percent of all pregnancies end in a miscarriage or a stillbirth;each of those instances in South Carolina could result in an unnecessary criminal investigation and prosecution under this law.

Who Will Be Hurt?
➢ People Who Need IVF (fertility treatment)

If the Act passes, in vitro fertilization and other infertility treatments (IVF) could be severely restricted. IVF requires fertilizing more eggs and creating more embryos than will be implanted. Groups who oppose abortion have said that disposing of fertilized eggs is the same as abortion and should be prohibited. Since the Act defines ‘unborn baby’ as an individual human being from fertilization until live birth and requires protection of the rights of fertilized eggs and embryos, disposing of fertilized eggs and embryos created for IVF that are not implanted would violate criminal homicide, abuse, and assault laws, and the donors, providers, and facility would be at risk of criminal or civil punishment for denying embryos the right to life.

➢ Women Who Experience Stillbirth or Miscarriage
There is a 15–20% chance of miscarriage or stillbirth in every pregnancy. If the Act passes, any woman who loses a pregnancy could be investigated, interrogated, arrested, and prosecuted if someone believes she could have or should have done something to prevent that loss. As numerous well-documented cases from around the country prove, women have already been arrested and
charged with crimes (murder, depraved heart homicide, manslaughter, feticide) because they experienced miscarriages and stillbirths, or because the woman was unable to “guarantee” that the child she gave birth to would survive.

➢ Women Who Do Anything That “Risks” Harm to Fertilized Eggs, Embryos, or Fetuses
Because pregnancy occurs inside of a pregnant woman’s body, everything she does or does not do could possibly have an impact on her future child. While there are many strong beliefs about what a woman should and shouldn’t do to have a healthy pregnancy, there is more and more research challenging those beliefs and recognizing that what women experienced in their lives before ever becoming pregnant is the most important thing. If this Act passes, every law, including criminal and civil laws, could be used to arrest, lock up or detain a woman believed to be taking action perceived to be risky or disapproved of by officials (such as smoking cigarettes, drinking alcohol, or missing a prenatal care appointment).

➢ Women Who Should Be Able to Confide in Medical Providers
The Act would undermine the trust pregnant women have in their health care providers by taking away patient confidentiality. South Carolina law allows medical providers to report suspected abuse or neglect of children to the authorities. If this Act passes, anything a woman confides in her doctor that could be considered harmful to her future child—including an inability to quit smoking or to control her diet—could trigger an “unborn child” report.

Pregnant Women Who Do Not Seek Abortions Already Are Criminalized Under Current South Carolina Law, A Total Abortion Ban Will Only Further Increase Criminalization.

  • Section 44-139-30 of S.988 provides, “A person convicted of performing or inducing an abortion must be punished in the same manner as provided in Section 16-3-20.” and Section 44-139-40 of S.988 provides “A person convicted of attempting to perform or induce an abortion must be punished in the same manner as provided in Section 16-3-29.” While this bill particularly specifies homicide and attempted homicide charges for women who have or attempt to have abortions, pregnant women who do not seek abortions will also face increased criminalization. In fact, even under abortion restrictions and partial abortion bans, hundreds of women in South Carolina have already faced arrest, prosecution, and/or incarceration--including women who were not seeking abortions and who wanted to carry their pregnancies to term. A total ban would only increase the number of pregnant women criminalized.
  • Even if pregnant women who do not have or attempt to have abortions cannot be prosecuted under S.988, they can be--and are--prosecuted under existing criminal laws.
  • South Carolina was the first state to permit the prosecution of a woman in relationship to her own pregnancy,[2] and it remains in the extreme minority position as one of only three jurisdictions in the United States to have judicially expanded its criminal child endangerment or neglect statutes to prosecute women for their alleged actions during pregnancy. [3]
  • In 1992, Cornelia Whitner gave birth to a healthy baby that tested positive for cocaine. On this basis alone, the state charged her with criminal child abuse, claiming that her fetus was as a “child” under existing state law. Ms. Whitner
    pleaded guilty, thinking it would help get her access to the treatment she needed. Instead of treatment, she got eight years in prison, and pregnant women in South Carolina can now be prosecuted for child abuse based on drug use or any other “risky” behavior during pregnancy. [4]
  • In 1999, Regina McKnight became the first woman in America to be convicted of homicide by child abuse as a result of experiencing a stillbirth. Though prosecutors conceded from the start of her case that Ms. McKnight had not intended to harm her fetus or lose her pregnancy, the jury accepted the scientifically unsupported claim that her cocaine use caused the stillbirth to occur. Ms. McKnight had no criminal record, but she was sentenced to 20 years imprisonment with 8 years suspended and no chance for parole. After 8 years of confinement, the South Carolina Supreme Court finally overturned her conviction, finding that the medical and scientific basis for the prosecution was based on outdated and inaccurate information. The Court did not, however, overturn the underlying theory of her prosecution - i.e., that a viable fetus is a person under state homicide law. [5]
  • Following McKnight and Whitner, hundreds of other women in South Carolina have been prosecuted in relation to their pregnancies. For example:
  • Angelia Shannette Kennedy suffered a stillbirth at Spartanburg Regional Medical Center in December 1998. Ms. Kennedy was interrogated by police shortly after the delivery and the loss. One male detective asked her, “Did you do everything in your power to ensure that you’d have a healthy baby?” Several years later, following McKnight, Ms. Kennedy was charged with homicide by child abuse. Rather than face a homicide trial, she pleaded guilty to three counts of criminal child endangerment and received a five year prison sentence. [6]
  • In July 2006, 20-year-old Hannah Jolly gave birth to a baby who tested positive for marijuana and cocaine. Ms. Jolly relinquished her newborn to nurses at a hospital and was therefore protected from prosecution for abandonment by Daniel’s Law, also known as the Abandoned Babies Act. Nevertheless, police tracked down Ms. Jolly and arrested her with “unlawful child neglect” based on her drug use during pregnancy. [7]
  • In 2018, 26-year-old Mary Brown was charged with “neglect of a child or helpless person” after her newborn tested positive for marijuana at birth. Heather Barrett, 28, was arrested for the same reason in 2019 and charged with the same offense. [8]

S.988 is unconstitutional on its face
Regardless of the status of Roe, South Carolina’s proposed abortion ban constitutes impermissible sex discrimination. It prohibits a medical procedure that only women and girls need and will cause women and girls to face criminal investigation and prosecution for health outcomes—including miscarriages and stillbirths—that only they experience. By targeting women’s healthcare for surveillance and their medical conditions for punishment, South Carolina impermissibly discriminates against women and girls. While South Carolina’s abortion ban is presumably aimed, at least in part, at protecting prenatal life, studies show that these laws do not actually reduce abortion rates but simply make abortion less safe. Furthermore, the abortion ban and criminal sanctions will deter the use of healthcare services by women and their families, further harming actual children born and in the care of their mothers. Anti-abortion laws elevate illusory protection of embryos and fetuses over the rights of women and girls. As the Supreme Court has long recognized, “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” By limiting women’s access to abortion and threatening them with criminal sanctions, S.988 not only undermines women’s access to medically necessary healthcare, but jeopardizes their equal citizenship.

South Carolina Should Focus its Efforts On The Actual Threats to Pregnant Women and Their Future Children’s Health and Safety: Infant and Maternal Mortality
The prosecutions described above, among others, jeopardize the health and safety of pregnant women and children. Indeed, the extension of criminal murder statutes to prosecute any abortions performed or attempted outside of the aforementioned reasons is uniformly and adamantly opposed by health professionals and their professional organizations. [9]

South Carolina has failed to enact legislation or policy that would protect pregnant women and their future children from any of the harms they actually face, including Infant and maternal mortality. In other words, South Carolina has devoted enormous resources towards prosecuting pregnant women and separating families, rather than addressing the problems that pose a genuine threat to pregnant women and children’s health and safety.

South Carolina also has one of the nation’s highest rates of maternal mortality. [10] Women in the state experience maternal mortality at a rate of 24.7 deaths per 100,000 live births—a rate significantly higher than the national rate of 17.4 deaths.
[11] The maternal mortality rate for Black women in South Carolina is even higher at 41.9 deaths. [12] The state’s failure to promote the health of its most vulnerable populations only increases the risk that women will experience a negative pregnancy outcome. [13] In South Carolina, a quarter of all pregnancies that result in a live birth do not receive prenatal care until late in the pregnancy. [14] Again, S.988 utterly fails to address this crisis in maternal and infant health. Instead, for the reasons described above, it will further jeopardize the health of women and their future children by undermining pregnant women’s trust in their medical providers and dissuading them from seeking prenatal care.

Conclusion
We strongly urge the rejection of S.988, which amounts to nothing more than a thinly veiled attempt to further entrench hostility towards pregnant women into South Carolina law—with concomitant health risks to both these women and their families. Rather than preserving the health and safety of eggs, embryos and fetuses, S.988 endangers mothers and their future children by
undermining trust between women and their medical providers, deterring women from seeking prenatal care, and threatening criminal prosecutions.

1. See infra note 5.
2. Whitner v. State (1997) 328 S.C. 1 [492 S.E.2d 777] and McKnight v. State (2008) 378 S.C. 33 [661 S.E.2d 354].
3. “[T]he overwhelming majority of the jurisdictions confronted with the prosecution of a mother for prenatal conduct causing harm to the subsequently born child, refuse to permit such prosecutions.” State v. Louk (2016) 237 W.Va. 200, 207 [786 S.E.2d 219, 226-227] (citing fifteen states). Only Alabama and Oklahoma have joined in judicially expanding their criminal statutes to prosecute women for their alleged conduct while pregnant. See Ex parte Hope Elisabeth Ankrom Petition for Writ of Certiorari (Ala. 2013) 152 So.3d 397; Green v. Oklahoma, 474 P.3d 886 (Ct. Crim. App. 2020).
4. The War on Drugs Coming to a Womb Near You, Nat'l Advocates for Pregnant Women (June 10, 2010),
https://www.nationaladvocatesforpregnantwomen.org/the-war-on-drugs-coming-to-a-womb-near-you/.
5. State v. Regina McKnight Background, Nat'l Advocates for Pregnant Women (May 9, 2006),
https://www.nationaladvocatesforpregnantwomen.org/state-v-regina-mcknight-background/; Regina McKnight — Victory at Long Last, Nat'l Advocates for Pregnant Women (May 12, 2008), https://www.nationaladvocatesforpregnantwomen.org/regina-mcknight-victory-at-long-last/.
6. South Carolina: Leading The Nation in the Prosecution and Punishment of Pregnant Women, Nat’l Advocates for Pregnant Women (June 17, 2006), https://www.nationaladvocatesforpregnantwomen.org/south-carolina-leading-thenation-in-the-prosecution-and-punishment-of-pregnant-women/.
7. Id.
8. Police: Mom arrested after baby tests positive for marijuana, WMBF News (May 10th 2018), https://www.wmbfnews.com/story/38159893/police-mom-arrested-after-baby-tests-positive-for-marijuana/; Rob Dew, Deputies: Sumter mother charged after newborn tests positive for marijuana, ABC Columbia (Mar. 6, 2019), https://www.abccolumbia.com/2019/03/06/deputies-sumter-mother-charged-after-newborn-tests-positive-formarijuana/.
9. See National Advocates for Pregnant Women, Medical and Public Health Group Statements Opposing Prosecution and Punishment of Pregnant Women, (June 2021), bit.ly/medicalgroupsstatements.
10. "Casey Leins, States With the Highest Maternal Mortality Rates, U.S. News & World Report (June 12, 2019), https://www.usnews.com/news/best-states/articles/2019-06-12/these-states-have-the-highest-maternal- ortality- rates.
11. March of Dimes, Maternal Mortality: South Carolina, 2018, https://www.marchofdimes.org/Peristats/ViewSubtopic.aspx?reg=45&top=6&stop=370&lev=1&slev=4&obj=35 (last accessed January 24, 2022).
12. Katharine Hendrix, Maternal Safety Comes in Threes, MUSC Health, https://www.marchofdimes.org/Peristats/ViewSubtopic.aspx?reg=45&top=6&stop=370&lev=1&slev=4&obj=35.
13. Am. Pub. Health Ass’n, Reducing Racial/Ethnic and Socioeconomic Disparities in Preterm and Low Birthweight Births, Policy No. 20062 (Nov. 8, 2006), https://www.apha.org/policies-and-advocacy/public-health- policystatements/policy-database/2014/07/18/10/01/reducing-racial-ethnic-and-socioeconomic-disparities-in- preterm-andlow-birthweight-births.
14. March of Dimes, Peristats: South Carolina, 2018,https://www.marchofdimes.org/Peristats/ViewSubtopic.aspx?reg=45&top=5&stop=20&lev=1&slev=4&obj=3 (last accessed Feb. 4, 2021).