South Carolina

May 25, 2023 Update

On May 24, the South Carolina legislature approved a 6-week abortion ban that the Republican governor is expected to sign into law. The bill includes exceptions for instances of rape and incest, allowing in those cases for abortion up to 12 weeks. The state’s only five female Senators, calling themselves the “Senate Sisters” vehemently opposed passage of the measure. South Carolina Governor Henry McMaster signed the bill into law on 5/25/23.

May 2, 2023 Update

The state Senate, on April 28, rejected a six-week (with exceptions for rape or incest, fetal anomalies as confirmed by two physicians, or to save the patient’s life/health) abortion ban after a bipartisan, multi-day filibuster by five female lawmakers. The vote marked the third time in the past year that the Senate failed to pass such a measure.

March 2023 Report

Measures to protect reproductive care

In South Carolina, the state’s supreme court struck down a six-week abortion ban (https://www.forbes.com/sites/alisondurkee/2023/01/05/south-carolina-supreme-court-declares-six-week-abortion-ban-unconstitutional/?sh=6c8e1d034761). This decision served as a further rallying call to anti-abortion advocates who are expected to continue to press their views and seek reforms from the state’s Republican-controlled legislature.

October 2022 Report

Summary of Current (and Most Recent) Abortion and Personhood Laws

South Carolina law prohibits abortions after 20 weeks unless there is a “fetal anomaly” or a physician determines “in reasonable medical judgment” that the woman “has a condition which so complicates her medical condition as to necessitate an abortion . . . to avert her death or avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.” South Carolina Pain-Capable Unborn Child Protection Act.
The state’s health code also describes the general requirements for abortion and the facilities at which abortions may be lawfully performed. 44 S.C. CODE ANN. § 44-41-20.
However, in 2021, the Governor signed into law a “trigger ban” which would ban most abortions once a fetal heartbeat is detected (i.e., around 6 weeks), subject to limited exceptions for rape, incest, the health of the mother, and fetal anomalies. South Carolina Fetal Heartbeat and Protection from Abortion Act. This Act took effect when Roe v. Wade was overturned. But on August 17, 2022, the South Carolina Supreme Court temporarily enjoined South Carolina from enforcing the Act while it continues to hear a Planned Parenthood challenge to the Act based on the State constitution. Therefore, the 20-week abortion ban under the South Carolina Pain-Capable Unborn Child Protection Act still applies.
On August 30, 2022, the South Carolina legislature initiated debate on a restrictive abortion bill, first introduced as House Bill 5399, the South Carolina Human Life Protection Act. The House and Senate have each passed a version of the bill but have not yet reached agreement on the final language.

Potential impact of the law on and references to IVF and reproductive medicine if any

It does not appear that current abortion restrictions in South Carolina will apply to IVF or other reproductive medicine services outside the context of a pregnancy.
There are no explicit references to IVF or reproductive medicine services in the state’s abortion statutes.

Relevant definitions

In the general abortion statute (44 S.C. CODE ANN. 44-41-10 et seq.):

“Abortion” is defined as “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.” 44 S.C. CODE ANN. § 44-41-10(a).
"Conception" is defined as “the fecundation of the ovum by the spermatozoa.” 44 S.C. CODE ANN. § 44-41-10(g).

In the South Carolina Pain-Capable Unborn Child Protection Act (44 S.C. CODE ANN. 44-41-410 et seq.):

"Abortion" is defined as “the use or prescription of any instrument, medicine, drug, or any other substance or device: (a) to intentionally kill the unborn child of a woman known to be pregnant; or (b) to intentionally prematurely terminate the pregnancy of a woman known to be pregnant, with an intention other than to increase the probability of a live birth or of preserving the life or health of the child after live birth.” 44 S.C. CODE ANN. § 44-41-4300(1).
"Fertilization" is defined as “the fusion of a human spermatozoon with a human ovum.” 44 S.C. CODE ANN. § 44-41-4300(4).
"Post-fertilization age" is defined as “the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum.” 44 S.C. CODE ANN. § 44-41-4300(9).
"Unborn child" and "fetus" are defined as “an individual organism of the species homo sapiens from fertilization until live birth.” 44 S.C. CODE ANN. § 44-41-4300(11).

In the South Carolina Fetal Heartbeat and Protection from Abortion Act, (44 S.C. CODE ANN. 44-41-610 et seq.):

"Conception" is defined as “fertilization.” 44 S.C. CODE ANN. § 44-41-610(1).
"Human fetus" and "unborn child" are defined as “an individual organism of the species homo sapiens from fertilization until live birth.” 44 S.C. CODE ANN. § 44-41-610(6).

Penalties for violations of the applicable abortion restrictions

A person who performs an illegal abortion may be subject to criminal and civil penalties. 44 S.C. CODE ANN. §§ 44-41-470, 44-41-680(D).

State Legislation and Reproductive Medicine

The ASRM Center for Policy and Leadership (CPL) has released reports concerning States' Abortion Laws and their Potential Implications for Reproductive Medicine. Current as of the date of publication, the reports provide an overview of states’ abortion laws, together with analysis of potential implications for reproductive medicine, including IVF.