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South Carolina Senate fails to pass near-total abortion ban after GOP lawmaker filibuster

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The failure of the near-total abortion ban spoke to the divide among South Carolina Republicans — and the chasm among Republicans in general — over whether abortion restrictions should include exceptions for pregnancies that were the result of a rape or incest.

South Carolina House bill 5399, which passed the state House last month, had enough support from Senate Republicans to ban nearly all abortions in the state, but a filibuster on Thursday from GOP state Sen. Tom Davis stopped it in its tracks. Republicans did not have the votes to overcome a filibuster and proceed to a vote on the bill, which requires a higher threshold of votes.

“I’m not going to let this (bill) come to a vote unless this body votes and sits me down,” Davis said on the Senate floor Thursday night.

South Carolina State Senator Tom Davis reacts after the Senate passed a new ban on abortion at the state legislature in Columbia, South Carolina, US September 8, 2022.

In introducing the amendment, state Senate Majority Leader Shane Massey, a Republican, conceded that the “votes are not there in the Senate right now to have an abortion ban earlier than six weeks.”

“I hate that I have to admit that,” he said, adding, “You got to have the votes to pass it, and unfortunately we don’t.”

“This is not where I wanted to be. I was hoping we’d do something pretty aggressive in response to Dobbs,” Massey said in introducing his amendment. “Hopefully we’re going to make progress. This amendment is definitely progress.”

He claimed the amendment would “shore up” the South Carolina law, S.1, against the legal challenges and correct the issues that the state Supreme Court identified as an ambiguity with the law. He argued that if the law isn’t fixed, South Carolina will be “abortion on demand.”

S. 1 bans abortions once what it calls a “fetal heartbeat” is detected, which can be as early as four weeks, and more commonly, six weeks into pregnancy.

Massey’s amendment maintains the exceptions to the ban for pregnancies that are the result of rape or incest, but shortens the time frame. The law currently allows exceptions to the ban for rape or incest if the “probable post-fertilization age of the fetus” is less than 20 weeks. The amendment would allow an exception for rape or incest up to the first trimester, which is up until about 14 weeks.

Several senators on the floor Thursday took issue with two subsections of the amendment, which state that fatal fetal abnormalities would require a diagnosis by two separate physicians before an abortion could be performed, and that a physician performing the abortion “shall preserve a DNA sample from the fetal remains and notify the sheriff in the county in which the abortion was performed.” A sheriff must then retrieve and store the sample in evidence for 90 days, so that the perpetrator of the rape might be prosecuted.

Massey’s amendment was adopted by a voice vote.

The bill has been sent back to the South Carolina House of Representatives, which will decide whether to accept the changes.

Republicans divided

House bill 5399, when it was first brought to the Senate on Wednesday, did not include exceptions for rape or incest, or fatal fetal anomalies. Davis had introduced several amendments over the two days to add back in the exceptions and was successful in getting an exemption for fatal fetal anomalies back into the bill.

“I made some headway yesterday in making a bad bill better, but it’s nowhere near the point where I can support it,” Davis said Thursday.

“And I recognize to a significant degree that I’m breaking with my Republican brethren,” he added.

Republican members were deeply divided over whether the bill should include these exceptions — with all three of the Senate’s female GOP members speaking out strongly against the bill Wednesday morning.

South Carolina State Senator Katrina Frye Shealy listens while debating a new ban on abortion at the state legislature in Columbia, South Carolina, US September 8, 2022.

“If you want to believe that God is wanting you to push a bill through with no exception that kills mothers and ruins the lives of children, let’s mothers bring home babies to bury them, then I think you’re miscommunicating with God or maybe you “We’re just not communicating with him at all,” Republican Sen. Katrina Shealy said Wednesday in a fiery speech on the Senate floor directed towards her male colleagues.

“I know we disagree on a lot of issues, but hearing you talk about menstrual cycles, conception, how you know when your egg is fertilized or having a baby, I got to tell you it really disgusts me.”

Shealy added: “Yes, I’m pro-life. I’m also pro-life with the mother, the life she has with her children who are already born. I care about the children who are forced into adulthood that was made up by a legislature full of men so they can make take a victory lap and feel good about it. You want children raising children who will most likely suffer domestic violence and live in poverty. But you don’t care because you’ve done your job and you will forget about them once they are born.”

Fellow GOP Sen. Sandy Senn also predicted that women would turn out in droves in the November election to vote on the issue of abortion, while also calling for the issue to be placed on the ballot.

Republican Sen. Penry Gustafson called on lawmakers “to face reality y’all. We don’t live in Dark Ages.”

“This is not simply a moral decision. And I’m not advocating for abortion on demand and I’m not advocating for abortion as birth control, but there are more considerations that must be undertaken,” she said on the Senate floor in arguing for exceptions for fatal fetal anomalies.

Lawmakers on Thursday also declined to amend H. 5399 so its text would be replaced with a joint resolution that would propose a ballot measure that would amend the constitution to recognize a “right of bodily integrity and autonomy that includes a limited right to abortion.”

Conservative Republican Rep. Josiah Magnuson, who backed the bill, told News84Media that it’s “embarrassing” that the Senate failed to pass an abortion ban as “most of these Republicans ran on strong pro-life” platforms.

“We’ve got to pass a bill that truly protects every innocent life,” he argued. He said conservative Republicans would be willing to go along with what lawmakers can do to restrict abortion, but added, “I don’t think this is the best we can get.” Magnuson said he supports voting down the Senate changes to the bill, which if the House chooses to do so would send the legislation to a conference committee.

After the US Supreme Court overruled Roe v. Wade, a South Carolina House ad hoc committee met in July to put together a “working draft” of H. 5399.

The original bill as they drafted it sought to ban abortion at every stage of pregnancy without exceptions for rape or incest– which, like in the Senate, was a major point of contention among Republicans in the House.

Exceptions were limited to preventing the death of the pregnant woman, the substantial risk of death for the pregnant woman because of a physical condition or “the substantial physical impairment of a major bodily function of the pregnant woman.” The bill had listed several medical conditions it deemed posed such a risk to the pregnant woman, including a molar pregnancy, ectopic pregnancy, severe preeclampsia and a miscarriage.

The House last week hastily added in an exception for cases of rape and incest up to 12 weeks after conception, with requirements to report the claim of rape or incest to law enforcement, before voting to advance the bill.

The Senate Medical Affairs Committee on Tuesday then removed the exception for rape and incest up to 12 weeks after conception, before advancing it to the full Senate.

The Senate-amended bill will now need to be approved again by the House before it can be sent to the governor’s desk.

“This amended version does not advance the cause of life”. [South Carolina] and I cannot concur with a bill that does nothing,” the House ad hoc committee chair, Republican Rep. John McCravy, told News84Media in an email. “We were not called back to pass a bill we already have — we were called to rewrite the laws of our state after the Dobbs decision.”

News84Media’s Dianne Gallagher contributed to this report.

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