(A70, R88, S474)

AN ACT TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING ARTICLE 6 OF CHAPTER 41, TITLE 44, RELATING TO THE FETAL HEARTBEAT AND PROTECTION FROM ABORTION ACT, SO AS TO PROVIDE THAT ABORTIONS MAY NOT BE PERFORMED IN THIS STATE AFTER A FETAL HEARTBEAT HAS BEEN DETECTED, WITH EXCEPTIONS FOR MEDICAL EMERGENCIES, RAPE, INCEST, OR FATAL FETAL ANOMALIES; TO CHANGE CERTAIN DEFINITIONAL TERMS; TO CREATE CRIMINAL PENALTIES; TO ESTABLISH CERTAIN RECORDKEEPING AND RECORD RETENTION REQUIREMENTS FOR PHYSICIANS AND OWNERS OF MEDICAL RECORDS; TO REQUIRE PHYSICIANS TO REPORT CERTAIN ALLEGATIONS OF RAPE OR INCEST TO LAW ENFORCEMENT; TO PROHIBIT CRIMINAL PROSECUTION OF ANY WOMAN WHO SEEKS OR OBTAINS AN ABORTION; TO CREATE A CIVIL RIGHT OF ACTION BY CERTAIN INDIVIDUALS FOR VIOLATIONS OF THE ARTICLE; TO REQUIRE PROFESSIONAL DISCIPLINE AGAINST PHYSICIANS IN CERTAIN CIRCUMSTANCES; AND FOR OTHER PURPOSES; BY ADDING SECTIONS 44-41-90, 63-17-325, AND 38-71-146 SO AS TO PROHIBIT THE USE OF STATE FUNDING FOR ABORTION-RELATED EXPENSES, TO REQUIRE CHILD SUPPORT FROM THE DATE OF CONCEPTION, AND TO REQUIRE HEALTH INSURANCE PLANS TO PROVIDE COVERAGE FOR CONTRACEPTIVES, RESPECTIVELY; BY AMENDING SECTIONS 44-41-10, 44-41-60, 44-41-70, 44-41-80, AND 44-41-330, ALL RELATING TO ABORTION, SO AS TO MAKE CONFORMING CHANGES; BY REQUIRING THE PUBLIC EMPLOYEE BENEFIT AUTHORITY AND THE STATE HEALTH PLAN TO PROVIDE COVERAGE FOR CONTRACEPTIVES; BY AUTHORIZING THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES TO INTERVENE ON BEHALF OF THEIR RESPECTIVE BODY IN CERTAIN COURT ACTIONS; BY REPEALING SECTION 2 OF ACT 1 OF 2021, SECTION 44-41-20, AND ARTICLE 5, CHAPTER 41, TITLE 44 ALL RELATING TO ABORTION; AND FOR OTHER PURPOSES.

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

Findings

SECTION 1.    The General Assembly hereby finds all of the following:

(1)    A fetal heartbeat is a key medical predictor that an unborn child will reach live birth.

(2)    Cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac.

(3) The State of South Carolina has a compelling interest from the outset of a woman's pregnancy in protecting the health of the woman and the life of the unborn child.

Fetal Heartbeat and Protection from Abortion Act

SECTION 2.    Article 6, Chapter 41, Title 44 of the S.C. Code is amended to read:

Section 44-41-610.    As used in 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) "Clinically diagnosable pregnancy" means the point in time when it is possible to determine that a woman is pregnant due to the detectible presence of human chorionic gonadotropin (hCG).

(3) "Conception" means fertilization of an ovum by sperm.

(4) "Contraceptive" means a drug, device, or chemical that prevents ovulation, conception, or the implantation of a fertilized ovum in a woman's uterine wall after conception.

(5) "Fatal fetal anomaly" means that, in reasonable medical judgment, the unborn child has a profound and irremediable congenital or chromosomal anomaly that, with or without the provision of life-preserving treatment, would be incompatible with sustaining life after birth.

(6) "Fetal heartbeat" means cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.

(7) "Gestational age" means the age of an unborn child as calculated from the first day of the last menstrual period of a pregnant woman.

(8) "Gestational sac" means the structure that comprises the extraembryonic membranes that envelop the unborn child and that is typically visible by ultrasound after the fourth week of pregnancy.

(9) "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.

(10) "Physician" means a person licensed to practice medicine in this State.

(11) "Pregnant" means the human biological female reproductive condition of having a living unborn child within her body, whether or not she has reached the age of majority.

(12) "Rape" has the same meaning as criminal sexual conduct, regardless of the degree.

(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 from conception until live birth.

Section 44-41-620.    An abortion may not be performed or induced without the voluntary and informed written consent of the pregnant woman or, in the case of incapacity to consent, the voluntary and informed written consent of her court-appointed guardian, and without compliance with the provisions of Section 44-41-330(A).

Section 44-41-630.    (A) An abortion provider who is to perform or induce an abortion, a certified technician, or another agent of the abortion provider who is competent in ultrasonography shall:

(1) perform an obstetric ultrasound on the pregnant woman, using whichever method the physician and pregnant woman agree is best under the circumstances;

(2) during the performance of the ultrasound, display the ultrasound images so that the pregnant woman may view the images; and

(3) record a written medical description of the ultrasound images of the unborn child's fetal heartbeat, if present and viewable.

(B) Except as provided in Section 44-41-640, Section 44-41-650, and Section 44-41-660, no person shall perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting an abortion if the unborn child's fetal heartbeat has been detected in accordance with Section 44-41-330(A). A person who violates this subsection is guilty of a felony and, upon conviction, must be fined ten thousand dollars, imprisoned for not more than two years, or both.

Section 44-41-640.    (A) It is not a violation of Section 44-41-630 if an abortion is performed or induced on a pregnant woman due to a medical emergency or is performed to prevent the death of the pregnant woman or to prevent the serious risk of a substantial and irreversible impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman.

(B)(1) Section 44-41-630 does not apply to a physician who performs or induces an abortion if the physician determines according to standard medical practice that a medical emergency exists or is performed to prevent the death of the pregnant woman or to prevent the serious risk of a substantial or irreversible impairment of a major bodily function, not including psychological or emotional conditions, that prevents compliance with the section.

(2) A physician who performs or induces an abortion on a pregnant woman based on the exception in item (1) shall make written notations in the pregnant woman's medical records of the following:

(a) the physician's belief that a medical emergency necessitating the abortion existed;

(b) the medical condition of the pregnant woman that assertedly prevented compliance with Section 44-41-630; and

(c) the medical rationale to support the physician's or person's conclusion that the pregnant woman's medical condition necessitated the immediate abortion of her pregnancy to avert her death and a medical emergency necessitating the abortion existed.

(3) A physician performing a medical procedure pursuant to item (1) shall make reasonable medical efforts under the circumstances to preserve the life of the pregnant woman's unborn child, to the extent that it does not risk the death of the pregnant woman or the serious risk of a substantial and irreversible physical impairment of a major bodily function of the pregnant woman, not including psychological or emotional conditions and in a manner consistent with reasonable medical practices. A medical procedure shall not be considered necessary if it is performed based upon a claim or diagnosis that the woman will engage in conduct that she intends to result in her death or in a substantial physical impairment of a major bodily function.

(4)(a) For at least seven years from the date the notations are made in the pregnant woman's medical records, the physician owner of the pregnant woman's medical records shall maintain a record of the notations and in his own records a copy of the notations.

(b) A person, if he is the owner of the pregnant woman's medical records, who violates this subsection is guilty of a felony and must be fined up to ten thousand dollars, imprisoned for not more than two years, or both.

(c) An entity with ownership of the pregnant woman's medical records that violates item (3) must be fined up to fifty thousand dollars.

(C)(1) It is not a violation of Section 44-41-630 for a physician to perform a medical procedure necessary in his reasonable medical judgment to prevent the death of a pregnant woman or the serious risk of a substantial and irreversible physical impairment of a major bodily function of the pregnant woman, not including psychological or emotional conditions.

(2) It is presumed that the following medical conditions constitute a risk of death or serious risk of a substantial and irreversible physical impairment of a major bodily function of a pregnant woman, not including psychological or emotional conditions: molar pregnancy, partial molar pregnancy, blighted ovum, ectopic pregnancy, severe preeclampsia, HELLP syndrome, abruptio placentae, severe physical maternal trauma, uterine rupture, intrauterine fetal demise, and miscarriage. However, when an unborn child is alive in utero, the physician must make all reasonable efforts to deliver and save the life of an unborn child during the process of separating the unborn child from the pregnant woman, to the extent that it does not adversely affect the life or physical health of the pregnant woman, and in a manner that is consistent with reasonable medical practice. The enumeration of the medical conditions in this item is not intended to exclude or abrogate other conditions that satisfy the exclusions contained in item (1) or prevent other procedures that are not included in the definition of abortion.

(3) A physician who performs a medical procedure pursuant to item (1) shall declare, in a written document maintained with the woman's medical records, that the medical procedure was necessary, the woman's medical condition necessitating the procedure, the physician's rationale for his conclusion that the procedure was necessary, and that all reasonable efforts were made to save the unborn child in the event it was living prior to the procedure. The declaration required by this item must be placed in the woman's medical records not later than thirty days after the procedure was completed. A physician's exercise of reasonable medical judgment in relation to a medical procedure undertaken pursuant to this subsection is presumed to be within the applicable standard of care.

(D) Medical treatment provided to a pregnant woman by a physician which results in the accidental or unintentional injury or death of her unborn child is not a violation of Section 44-41-630.

(E) It is not a violation of Section 44-41-630 to use, sell, or administer a contraceptive measure, drug, chemical, or device if the contraceptive measure, drug, chemical, or device is used, sold, prescribed or administered in accordance with manufacturer's instructions and is not used, sold, prescribed or administered to cause or induce an abortion.

Section 44-41-650.    (A) A physician may perform, induce, or attempt to perform or induce an abortion on a pregnant woman after the fetal heartbeat has been detected in accordance with Section 44-41-630 if:

(1) the pregnancy is the result of rape, and the probable gestational age of the unborn child is not more than twelve weeks; or

(2) the pregnancy is the result of incest, and the probable gestational age of the unborn child is not more than twelve weeks.

(B) A physician who performs or induces an abortion on a pregnant woman based on an exception contained in this section must report the allegation of rape or incest to the sheriff in the county in which the abortion was performed. The report must be made no later than twenty-four hours after performing or inducing the abortion, may be made orally or otherwise, and shall include the name and contact information of the pregnant woman making the allegation. Prior to performing or inducing an abortion, the physician who performs or induces an abortion based on an allegation of rape or incest must notify the pregnant woman that the physician will report the allegation of rape or incest to the sheriff. The physician shall make written notations in the pregnant woman's medical records that the abortion was performed pursuant to the applicable exception, that the doctor notified the sheriff of the allegation of rape or incest in a timely manner, and that the woman was notified prior to the abortion that the physician would notify the sheriff of the allegation of rape or incest.

(C) A person who violates this section is guilty of a felony and, upon conviction, must be fined ten thousand dollars, imprisoned for not more than two years, or both.

Section 44-41-660.    (A) It is not a violation of Section 44-41-630 if an abortion is performed or induced on a pregnant woman due to the existence of a fatal fetal anomaly. Section 44-41-630 does not apply to a physician who performs or induces an abortion if the physician or person determines according to standard medical practice that there exists a fatal fetal anomaly.

(B)(1) A person who performs or induces an abortion based upon the existence of a fatal fetal anomaly shall make written notations in the pregnant woman's medical records of:

(a) the presence of a fatal fetal anomaly;

(b) the nature of the fatal fetal anomaly;

(c) the medical rationale for making the determination that with or without the provision of life-preserving treatment life after birth would be unsustainable.

(2) For at least seven years from the date the notations are made in the woman's medical records, the owner of the pregnant woman's medical records shall maintain a record of the notations.

(C) A person who violates this section is guilty of a felony and, upon conviction, must be fined up to ten thousand dollars, imprisoned for not more than two years, or both.

(D) An entity with ownership of the pregnant woman's medical records that violates item (2) must be fined up to fifty thousand dollars.

Section 44-41-670.    A pregnant woman on whom an abortion is performed or induced in violation of this article may not be criminally prosecuted for violating any of the provisions of this article or for attempting to commit, or conspiring to commit a violation of any of the provisions of the article and is not subject to a civil or criminal penalty based on the abortion being performed or induced in violation of any of the provisions of this article.

Section 44-41-680.    (A)    In addition to all other remedies available under common or statutory law, failure to comply with the requirements of this article shall provide the basis for a civil action further described in this section.

(B) A pregnant woman upon whom an abortion has been performed, induced, or coerced in violation of this article may maintain an action against the person who violated this article for actual and punitive damages. In addition to all other damages, and separate and distinct from all other damages, a plaintiff is entitled to statutory damages of ten thousand dollars for each violation of this article to be imposed on each defendant found to have violated this article.

(C) A separate and distinct cause of action for injunctive relief against any person who has violated this article may be maintained by:

(1) the woman upon whom the abortion was performed or induced in violation of this article;

(2) the parent or guardian of the pregnant woman if she had not attained the age of eighteen years at the time of the abortion or died as a result of the abortion;

(3) a solicitor or prosecuting attorney with proper jurisdiction; or

(4) the Attorney General.

(D) If a plaintiff prevails in an action initiated pursuant to this section the court shall award the plaintiff reasonable costs and attorney's fees.

(E) No damages, costs, or attorney's fees may be assessed against the woman upon whom an abortion was performed or induced.

(F) Under no circumstances may civil damages be awarded to a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct.

(G) A civil cause of action pursuant to this section must be brought within three years of the date of the abortion and is not subject to the limitations