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					                                 South Carolina General Assembly
                                     118th Session, 2009-2010

S. 1421

STATUS INFORMATION

General Bill
Sponsors: Senators Grooms, Bryant, Verdin, Bright, Campbell, Fair, Mulvaney, Hayes and Peeler
Document Path: l:\s-res\lkg\022viab.kmm.lkg.docx

Introduced in the Senate on May 5, 2010
Currently residing in the Senate Committee on Medical Affairs

Summary: Abortion


HISTORY OF LEGISLATIVE ACTIONS

    Date   Body Action Description with journal page number
  5/5/2010 Senate Introduced and read first time SJ-6
  5/5/2010 Senate Referred to Committee on Medical Affairs SJ-6


VERSIONS OF THIS BILL

5/5/2010
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 7
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 9                      A BILL
10
11   TO AMEND SECTION 44-41-10 OF THE 1976 CODE,
12   RELATING TO DEFINITIONS CONCERNING ABORTIONS,
13   TO REMOVE CERTAIN DEFINITIONS; TO AMEND
14   CHAPTER 41, TITLE 44, RELATING TO ABORTIONS, BY
15   ADDING SECTION 44-41-15, TO PROVIDE FINDINGS
16   CONCERNING FETAL PAIN, FETAL VIABILITY, AND AN
17   ASSERTION OF THE STATE’S COMPELLING INTEREST IN
18   PROTECTING THE LIVES OF VIABLE UNBORN
19   CHILDREN; TO AMEND SECTION 44-41-20, RELATING TO
20   WHEN AN ABORTION MAY LEGALLY BE PERFORMED,
21   TO PROVIDE THAT ABORTIONS PERFORMED PRIOR TO
22   THE END OF TWENTY-TWO WEEKS AFTER CONCEPTION
23   REQUIRE A WOMAN’S INFORMED CONSENT, AND THAT
24   NO ABORTIONS MAY BE PERFORMED AFTER
25   TWENTY-TWO WEEKS AFTER CONCEPTION UNLESS THE
26   WOMAN HAS A MEDICAL CONDITION WHICH, ON THE
27   BASIS OF THE PHYSICIAN’S GOOD FAITH JUDGMENT, SO
28   COMPLICATES A PREGNANCY AS TO NECESSITATE AN
29   IMMEDIATE ABORTION TO AVERT THE RISK OF HER
30   DEATH OR FOR WHICH A DELAY WILL CREATE SERIOUS
31   RISK    OF    SUBSTANTIAL    AND    IRREVERSIBLE
32   IMPAIRMENT OF MAJOR BODILY FUNCTION; TO AMEND
33   SECTION 44-41-320, RELATING TO DEFINITIONS
34   CONCERNING A WOMAN’S INFORMED CONSENT TO AN
35   ABORTION, TO DEFINE NECESSARY TERMS; TO AMEND
36   SECTION 44-41-330, RELATING TO A WOMAN’S
37   INFORMED CONSENT TO AN ABORTION, TO INCREASE
38   THE REFLECTION PERIOD TO TWENTY-FOUR HOURS, TO
39   CLARIFY PROVISIONS CONCERNING ULTRASOUNDS
40   PERFORMED PRIOR TO AN ABORTION, TO PROVIDE
41   THAT INFORMATION CONCERNING FETAL PAIN, AND TO
42   MAKE OTHER TECHNICAL AMENDMENTS; AND TO

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 1   AMEND SECTION 44-41-340, RELATING TO INFORMATION
 2   THAT MUST BE PROVIDED TO A WOMAN PRIOR TO AN
 3   ABORTION, TO PROVIDE THAT THE INFORMATION
 4   MUST INCLUDE MATERIAL CONCERNING FETAL PAIN, A
 5   LIST OF HEALTHCARE PROVIDERS, FACILITIES, AND
 6   CLINICS THAT OFFER TO PERFORM ULTRASOUNDS FREE
 7   OF CHARGE, A PLAINLY WORDED EXPLANATION OF
 8   HOW A WOMAN MAY CALCULATE THE GESTATIONAL
 9   AGE OF HER EMBRYO OR FETUS, A SCIENTIFICALLY
10   ACCURATE      STATEMENT       CONCERNING     THE
11   CONTRIBUTION THAT EACH PARENT MAKES TO THE
12   GENETIC CONSTITUTION OF THEIR BIOLOGICAL CHILD,
13   AND FORMS FOR NOTIFICATIONS, CERTIFICATIONS,
14   AND VERIFICATIONS REQUIRED BY SECTION 44-41-330.
15
16   Be it enacted by the General Assembly of the State of South
17   Carolina:
18
19   SECTION 1. Section 44-41-10 of the 1976 Code is amended to
20   read:
21
22      “Section 44-41-10. As used in this chapter:
23      (a)(1) ‘Abortion’ means the use of an instrument, medicine,
24   drug, or other substance or device with intent to terminate the
25   pregnancy of a woman known to be pregnant for reasons other
26   than to increase the probability of a live birth, to preserve the life
27   or health of the child after live birth, or to remove a dead fetus.
28      (b)(2) ‘Physician’ means a person licensed to practice medicine
29   in this State.
30      (c)(3) ‘Department’ means the South Carolina Department of
31   Health and Environmental Control.
32      (d)(4) ‘Hospital’ means those institutions licensed for hospital
33   operation by the department in accordance with Article 3, Chapter
34   7 of this title and which have also been certified by the department
35   to be suitable facilities for the performance of abortions.
36      (e)(5) ‘Clinic’ shall mean any facility other than a hospital as
37   defined in subsection (d) which has been licensed by the
38   department, and which has also been certified by the department to
39   be suitable for the performance of abortions.
40      (f)(6) ‘Pregnancy’ means the condition of a woman carrying a
41   fetus or embryo within her body as the result of conception.
42      (g)(7) ‘Conception’ means the fecundation of the ovum by the
43   spermatozoa.

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 1      (h)(8) ‘Consent’ means a signed and witnessed voluntary
 2   agreement to the performance of an abortion.
 3      (i) ‘First trimester of pregnancy’ means the first twelve weeks
 4   of pregnancy commencing with conception rather than computed
 5   on the basis of the menstrual cycle.
 6      (j) ‘Second trimester of pregnancy’ means that portion of a
 7   pregnancy following the twelfth week and extending through the
 8   twenty-fourth week of gestation.
 9      (k) ‘Third trimester of pregnancy’ means that portion of a
10   pregnancy beginning with the twenty-fifth week of gestation.
11      (l) ‘Viability’ means that stage of human development when
12   the fetus is potentially able to live outside of the mother’s womb
13   with or without the aid of artificial life support systems. For the
14   purposes of this chapter, a legal presumption is hereby created that
15   viability occurs no sooner than the twenty-fourth week of
16   pregnancy.
17      (m)(9) ‘Minor’ means a female under the age of seventeen.
18      (n)(10) ‘Emancipated minor’ means a minor who is or has
19   been married or has by court order been freed from the care,
20   custody, and control of her parents.
21      (o)(11) ‘In loco parentis’ means any person over the age of
22   eighteen who has placed himself or herself in the position of a
23   lawful parent by assuming obligations which are incidental to the
24   parental relationship and has so served for a period of sixty days.”
25
26   SECTION 2. Article 1, Chapter 41, Title 44 of the 1976 Code is
27   amended by adding:
28
29      “Section 44-41-15. The General Assembly finds:
30      (1) The State has legitimate interests from the outset of
31   pregnancy in protecting the health of a woman and the life of an
32   embryo or fetus.
33      (2) A woman has a right to choose an abortion before fetal
34   viability without undue interference from the State but, to promote
35   the state’s profound interest in the health of a woman and the life
36   of an embryo or fetus, the State may take measures to ensure that a
37   woman’s choice is informed.
38      (3) After fetal viability, the State may regulate and even
39   proscribe abortion, except where it is necessary, in the appropriate
40   medical judgment, for the preservation of life or health of the
41   mother.



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 1      (4) Fetal viability means that stage of human development
 2   when the fetus is potentially able to live outside of the mother’s
 3   womb with or without the aid of artificial life support systems.
 4      (5) Advances in maternal health care and in neonatal care have
 5   continued to advance fetal liability earlier in the pregnancy.
 6      (6) There is general acceptance in the medical community that
 7   an unborn child reaches fetal viability approximately twenty-four
 8   weeks after conception.
 9      (7) There is compelling medical evidence that advances in
10   neonatology has advanced fetal viability to twenty-two weeks after
11   conception.
12      (8) The National Institute of Child Health and Human
13   Development recognizes and calculates survival statistics
14   beginning with unborn children born twenty-two weeks after
15   conception.
16      (9) Some medical scholars have posited that an unborn child
17   may reach viability as early as twenty weeks after conception.
18      (10) At least twenty weeks after conception, there is substantial
19   evidence that an unborn child has the physical structures necessary
20   to experience pain.
21      (11) There is substantial evidence that, by twenty weeks after
22   conception, unborn children seek to evade certain stimuli in a
23   manner in which a reasonable adult would interpret as a response
24   to pain.
25      (12) Anesthesia is routinely administered to unborn children
26   who have developed twenty weeks or more past conception who
27   undergo prenatal surgery.
28      (13) Even prior to twenty weeks after conception, unborn
29   children have been observed to exhibit hormonal stress responses
30   to painful stimuli and those responses were reduced when pain
31   medication was administered directly to the unborn children.
32      (14) It is the purpose of this State to assert its compelling state
33   interest in protecting the lives of viable unborn children.”
34
35   SECTION 3. Section 44-41-20 of the 1976 Code is amended to
36   read:
37
38     “Section 44-41-20. (A) Abortion shall be a criminal act
39   except when performed under the following circumstances:
40     (a) During the first trimester of pregnancy the abortion is
41   performed with the pregnant woman’s consent by her attending
42   physician pursuant to his professional medical judgment.


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 1      (b) During the second trimester of pregnancy the abortion is
 2   performed with the pregnant woman’s consent by her attending
 3   physician in a hospital or clinic certified by the Department.
 4      (c) During the third trimester of pregnancy, the abortion is
 5   performed with the pregnant woman’s consent, and if married and
 6   living with her husband the consent of her husband, in a certified
 7   hospital, and only if the attending physician and one additional
 8   consulting physician, who shall not be related to or engaged in
 9   private practice with the attending physician, certify in writing to
10   the hospital in which the abortion is to be performed that the
11   abortion is necessary based upon their best medical judgment to
12   preserve the life or health of the woman. In the event that the
13   preservation of the woman’s mental health is certified as the
14   reason for the abortion, an additional certification shall be required
15   from a consulting psychiatrist who shall not be related to or
16   engaged in private practice with the attending physician. All facts
17   and reasons supporting such certification shall be set forth by the
18   attending physician in writing and attached to such certificate. No
19   person may perform an abortion prior to the end of the
20   twenty-second week after conception unless the abortion is
21   performed by the woman’s attending physician with the pregnant
22   woman’s informed consent.
23      (B) No person may perform or induce an abortion after the
24   twenty-second week after conception unless the woman has a
25   medical condition which, on the basis of the physician’s good faith
26   judgment, so complicates a pregnancy as to necessitate an
27   immediate abortion to avert the risk of her death or for which a
28   delay will create serious risk of substantial and irreversible
29   impairment of major bodily function.”
30
31   SECTION 4. Section 44-41-320 of the 1976 Code is amended by
32   adding an appropriately numbered new item to read:
33
34     “( ) ‘Anesthesia’ or ‘analgesic’ means a drug administered for
35   medical or surgical purposes that induces a partial or total loss of
36   sensation.”
37
38   SECTION 5. Section 44-41-330 of the 1976 Code is amended to
39   read:
40
41     “Section 44-41-330. (A) Except in the case of a medical
42   emergency and in addition to any other consent required by the


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 1   laws of this State, no abortion may be performed or induced unless
 2   the following conditions have been satisfied:
 3         (1)(a) At least twenty-four hours prior to an abortion, the
 4   woman must be notified of the following in writing: ‘You have
 5   the right to review written materials prepared by the State of South
 6   Carolina which describe fetal development, explain how the
 7   gestational age of her embryo of fetus is calculated, list agencies
 8   which offer alternatives to abortion, list healthcare providers,
 9   facilities, or clinics that perform ultrasounds free of charge,
10   information concerning fetal pain, and describe medical assistance
11   benefits which may be available for prenatal care, childbirth, and
12   neonatal care. You have the right to an ultrasound prior to an
13   abortion and to view your ultrasound image.’
14            (b) If the woman chooses to exercise her right to an
15   obstetric ultrasound prior to an abortion, then no abortion
16   procedure may be performed or induced until at least twenty-four
17   hours have elapsed since the completion of that ultrasound. An
18   ultrasound performed pursuant to this item must be used to at least
19   verify the probable gestational age of the embryo or fetus and the
20   woman must be informed of the probable gestational age of the
21   embryo or fetus by the person performing the ultrasound.
22   However, the verification of probable gestational age required by
23   this subitem does not satisfy the requirement in item (2) of this
24   subsection. If the ultrasound is performed by a healthcare
25   provider, facility, or clinic that offers to perform ultrasounds free
26   of charge, information concerning the probable gestational age of
27   the embryo or fetus and any images produced may only be
28   provided to the woman choosing to have the ultrasound.
29            (c) The certification required by subitem (3) relating to an
30   an ultrasound performed pursuant to this item and any image
31   produced from an ultrasound performed pursuant to this item may
32   not be used for or relied upon for any purpose other than to
33   establish the date and time that an ultrasound was performed. A
34   healthcare provider, facility, or clinic that performs an ultrasound
35   free of charge as provided in this subitem may not be held liable
36   for any injuries or damages that arise from the misuse of the
37   certification required by subitem (3) of this section. Providing
38   ultrasounds pursuant to this item may not be the basis for any new
39   or additional regulation of the healthcare provider, facility, or
40   clinic performing the ultrasound.
41         (2) The woman must be informed by the physician who is to
42   perform or induce the abortion or by an allied health professional
43   working in conjunction with the physician of the procedure to be

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 1   involved and, for women choosing an abortion during the time
 2   period during which a fetus may feel pain, that anesthetic or
 3   analgesic is available to eliminate or alleviate pain to the fetus
 4   caused by the particular method of abortion performed or induced.
 5   The by the physician who is to perform or induce the abortion
 6   must inform the woman of the probable gestational age of the
 7   embryo or fetus at the time the abortion is to be performed or
 8   induced. If an ultrasound is performed, an abortion may not be
 9   performed sooner than sixty minutes following completion of the
10   ultrasound. The physician who is to perform the abortion or an
11   allied health professional working in conjunction with the
12   physician must inform the woman before the ultrasound procedure
13   of her right to view the ultrasound image at her request during or
14   after the ultrasound procedure.
15           (a) Whether or not she exercises her right to an ultrasound
16   as provided in item (1)(b), the physician who is to perform or
17   induce the abortion or an allied health professional may perform
18   any medical procedure necessary to aid the safe performance or
19   inducement of the abortion or to provide the woman information
20   required by this subitem. Medical procedures performed pursuant
21   to this subitem do not subject the woman to any further waiting
22   period.
23           (b) At the woman’s request, the physician who is to
24   perform or induce the abortion or by an allied health professional
25   working in conjunction with the physician must administer
26   anesthetic or analgesic to eliminate or alleviate pain to the fetus
27   caused by the particular method of abortion to be performed or
28   induced.
29         (2) The woman must be presented by the physician who is to
30   perform the abortion or by an allied health professional working in
31   conjunction with the physician a written form containing the
32   following statement: ‘You have the right to review printed
33   materials prepared by the State of South Carolina which describe
34   fetal development, list agencies which offer alternatives to
35   abortion, and describe medical assistance benefits which may be
36   available for prenatal care, childbirth, and neonatal care. You have
37   the right to view your ultrasound image.’ This form must be
38   signed and dated by both the physician who is to perform the
39   procedure and the pregnant woman upon whom the procedure is to
40   be performed.
41         (3) The woman must certify in writing, before the abortion,
42   that the information described in item (1) of this subsection has
43   been furnished to her, that she has been informed of her right to

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 1   have an ultrasound prior to the abortion, that she has been
 2   informed that she has a right to view images produced during that
 3   ultrasound, and that she has been informed of her opportunity to
 4   review the information referred to in item (1) of this section. The
 5   certification must also indicate whether the woman chose to
 6   exercise her right to an ultrasound prior to the abortion. If she
 7   chose to exercise her right to an ultrasound prior to the abortion,
 8   the woman must also certify that at least twenty-four hours have
 9   elapsed since the ultrasound procedure was completed.
10         (4) Before performing or inducing the abortion, the
11   physician who is to perform or induce the abortion must determine
12   that the written certification prescribed by item (3) of this
13   subsection or the certification required by subsection (C) or (D)
14   has been signed. This subsection does not apply in the case where
15   an abortion is performed or induced pursuant to a court order.
16      (B) Nothing herein limits the information provided by the
17   physician who is to perform or induce the abortion or allied health
18   professional from providing to the person upon whom the abortion
19   procedure is to be performed woman any additional information
20   beyond that required to be provided by this section.
21      (C) No In cases where the information described in item (A)(1)
22   are provided in person to the woman by the clinic or other facility
23   where the abortion is to be performed or induced, no abortion may
24   be performed or induced sooner than one hour twenty-four hours
25   after the woman receives the written materials and certifies this
26   fact to the physician or the physician’s agent.
27      (D) If the clinic or other facility where the abortion is to be
28   performed or induced mails or electronically transmits the
29   information described in Section 44-41-10, item (A)(1), in written
30   form, to the woman upon whom the abortion is to be performed or
31   induced or if the woman obtains the information at the county
32   health department or downloads the information from the
33   Department of Health and Environmental Control’s Internet
34   website and if the woman verifies certifies in writing, before the
35   abortion, that the printed materials were received by her more than
36   one hour twenty-four hours before the abortion is scheduled to be
37   performed or induced, that the information described in item
38   (A)(1) has been provided to her, and that she has been informed of
39   her opportunity to review the information referred to in item (A)(2)
40   that she has been informed of her right to have an ultrasound prior
41   to the abortion, and that she has been informed that she has a right
42   to view images produced during that ultrasound, then the waiting
43   period required pursuant to subsection (C) does not apply abortion

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 1   may be performed or induced twenty-four hours after the time the
 2   woman certifies as being when she received all the required
 3   information.
 4      (E) In the event the person upon whom the abortion is to be
 5   performed or induced is an unemancipated minor, as defined in
 6   Section 44-41-10, the information described in Section
 7   44-41-330(A)(1) and (2) must be furnished and offered
 8   respectively to a parent of the minor, a legal guardian of the minor,
 9   a grandparent of the minor, or any person who has been standing in
10   loco parentis to the minor for a period of not less than sixty days.
11   The parent, legal guardian, grandparent, or person who has been
12   standing in loco parentis, as appropriate, must make the
13   certification required by Section 44-41-330(A)(3). In the event the
14   person upon whom the abortion is to be performed is under
15   adjudication of mental incompetency by a court of competent
16   jurisdiction, the information must be furnished and offered
17   respectively to her spouse or a legal guardian if she is married; if
18   she is not married, from one parent or a legal guardian. The
19   spouse, legal guardian, or parent, as appropriate, must make the
20   certification required by Section 44-41-330(A)(3). This subsection
21   does not apply in the case of an abortion performed pursuant to a
22   court order.
23      (F) A clinic or other facility must maintain, for three years after
24   the abortion is performed or induced, the woman’s written
25   verification that the information was so provided and the printed
26   materials were so offered. In the case of an unemancipated minor
27   or mentally incompetent person, the clinic or other facility is
28   required to maintain a copy of the court order or the medical
29   records and written consent for three years after the procedure is
30   performed.
31      (G) This section does not apply if a clinic or other facility
32   where abortions are performed or induced does not have, through
33   no fault of the clinic or facility and if the clinic or facility can
34   demonstrate through written evidence, the unavailability of the
35   materials described in Section 44-41-340.”
36
37   SECTION 6. Section 44-41-340(A) is amended by adding
38   appropriately numbered new subitems to read:
39
40      “( ) a list of healthcare providers, facilities, and clinics that
41   offer to perform ultrasounds free of charge. The list must be
42   arranged geographically and shall include the name, address, hours
43   of operation, and telephone number of each entity listed. A

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 1   healthcare provider, facility, or clinic that would like to be
 2   included on this list may contact the department and provide the
 3   required information. The department must update this list
 4   annually before September first;
 5      ( ) information concerning fetal pain that includes, but is not
 6   limited, to:
 7         ( ) that by twenty weeks, an unborn child possesses all
 8   anatomical links in its nervous system, including a spinal cord,
 9   nerve tracts, thalamus, and cerebral cortex, that are necessary to
10   feel pain;
11         ( ) that an unborn child who is twenty weeks gestation or
12   more is fully capable of experiencing pain;
13         ( ) a description of the actual steps in abortion procedures
14   that cause fetal pain;
15         ( ) that maternal anesthesia generally offers little pain
16   prevention for the unborn child; and
17         ( ) that an anesthetic or analgesic is available in or to reduce
18   or alleviate pain to the fetus during an abortion;
19      ( ) a plainly worded explanation of how a woman may
20   calculate the gestational age of her embryo or fetus;
21      ( ) a scientifically accurate statement concerning the
22   contribution that each parent makes to the genetic constitution of
23   their biological child;
24      ( ) forms for notifications, certifications, and verifications
25   required by Section 44-41-330.”
26
27   SECTION 7. The provisions of this act are severable. If any
28   section, subsection, paragraph, item, subitem, subparagraph,
29   sentence, clause, phrase, or word of this act is for any reason held
30   to be unconstitutional or invalid, such holding shall not affect the
31   constitutionality or validity of the remaining portions of the act, the
32   General Assembly hereby declaring that it would have passed each
33   and every section, subsection, item, subitem, paragraph,
34   subparagraph, sentence, clause, phrase, and word thereof,
35   irrespective of the fact that any one or more other sections,
36   subsections, paragraphs, subparagraphs, sentences, clauses,
37   phrases, or words hereof may be declared to be unconstitutional,
38   invalid, or otherwise ineffective.
39
40   SECTION 8. This act takes effect upon approval by the Governor.
41                            ----XX----
42


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