Good morning, Chairman Verdin and Members of the Senate Medical Affairs Committee. My name is Steven H. Aden, and I have the privilege of serving as Chief Legal Officer and General Counsel to Americans United for Life, the oldest and most active pro-life national advocacy organization. AUL has dedicated over 50 years to advocating for comprehensive legal protections for human life from conception to natural death. A USA Today research study concluded that AUL drafted “the bulk of” the hundreds of pro-life bills passed in the states in the last ten years.
As all of you are aware, the U.S. Supreme Court on June 24th issued a decision that shook the nation. The Court’s majority said:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision . . . It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
With those words, the Supreme Court majority in Dobbs v. Jackson Women’s Health Organization ended nearly fifty years of constitutionalized abortion and submitted its formal resignation as “the national abortion control board.”
In the less than two months since that decision, much has happened. South Carolina, to its credit, has prevailed in its constitutional defense of the State’s Heartbeat Law, and that law is enforceable today. South Carolina has also for many years had one of the strongest abortion clinic regulations laws on the books, which it successfully defended from courtroom attack by pro-abortion forces that have opposed virtually every kind of law intended to protect women and human life from abortion. South Carolina has expressed its love for human life in many ways: by limiting abortion after 20 weeks’ gestation, by banning the barbaric practice of partial-birth abortion (D&X), and by mandating that abortionists do what every other provider of outpatient surgical procedures does—provide full informed consent about what an abortion really is and the risks it poses, and time to consider its consequences.
Allow me also to commend the General Assembly and the Governor for enacting this session House Bill 4776, the Medical Ethics and Diversity (MED) Act, which will protect pro-Life physicians and healthcare professionals from retaliation for their commitment to fulfilling their Hippocratic Oath to “First do no harm.”
Current Legislation in South Carolina
The Senate now has before it some half a dozen bills, seeking a way forward for the citizens of this good State in the wake of Roe. Several bills, namely Senate Bills 1127, 988, and 1327, are what AUL calls “conditional bills,” bills that spring into existence upon the overturn of Roe. Needless to say, that eventuality has now occurred, and those provisions are moot. Senate Bills 1127 and 988, versions of the “Equal Protection for Unborn Babies Act,” are virtually identical, and would make the performance of a chemical or surgical abortion illegal. “Abortion” is defined to exclude procedures to treat ectopic pregnancy or miscarriage—as all of AUL’s model legislation does—and the provisions do not apply to procedures intended to prevent the death of the mother, provided that reasonable efforts are made to preserve the life of both. Both bills contemplate the possibility of holding the pregnant woman criminally culpable for the act of abortion, although 1127 would allow consideration for her level of cooperation against the abortionist. Because AUL considers women the “second victim” of abortion, we oppose any bill that would criminalize the mother for the act of abortion, and therefore can’t support these bills.
Senate Bill 1327 would prohibit abortion except in cases involving “medical emergency” and “fetal anomaly.” “Medical emergency” is defined to include circumstances where abortion is necessary to avert maternal death or a serious risk of a substantial and irreversible physical impairment of a major bodily function, employing language upheld by the Supreme Court in Planned Parenthood v. Casey. Generally, AUL prefers this definitional approach, since it provides clearer legal guidance in difficult circumstances than a mere exclusion for “life of the mother” does. However, “Fetal anomaly” is defined in this bill to mean a condition incompatible with sustaining life after birth. This definition would allow abortion in circumstances such as Trisomy 18, as Mr. Deagan testified earlier. AUL believes that such exceptions degrade the value of all human life, and for this reason, we oppose this bill.
Senate Bill 907 is what we colloquially refer to as an “Abortion Pill Rescue Bill,” since it would mandate that information be provided to a woman considering chemical abortion that the effects of the first pill of the two-part chemical abortion dosage can sometimes be stopped by an appropriate dose of progesterone, and that she may consult a doctor or healthcare provider to determine what her options are.
Senate Bill 381, known as the “Personhood Act of South Carolina,” purports to establish that the state-protected right to life vests at fertilization, and that the rights of due process and equal protection guaranteed by the state constitution also vest at that point. However, the right to life of the maternal patient is also respected, and the bill does not prevent treatment intended to prevent her death. One major shortcoming of this approach from Americans United for Life’s perspective is that the language of the bill does not explicitly prohibit abortion; although it appears to intend that result, any impact on the practice of abortion is oblique, and there are no criminal or civil enforcement provisions. Thus, it is doubtful that the measure would accomplish what it appears to intend.
Finally, allow me to note that Senate Bill 1348, the “Reproductive Health Rights Act,” mirrors the provisions we’ve seen in numerous States that seek to codify the framework of Roe v. Wade, which ushered in “abortion on demand” in all fifty States. This bill would effectively result in the invalidation of all progress the South Carolina Assembly has made over the years to become one of the most pro-Life states in the country. It would expand and enshrine abortion as a “right” and hinder future lawmakers from implementing regulations or limitations on abortion.
Abortion would go from prohibited to protected. It explicitly states that before viability, the decision whether to have an abortion is solely between the maternal patient and her physician. After viability, abortion would be permitted when “necessary based upon her physician’s best medical judgment to preserve the life or health of the woman.” This exception is not as minimal as it sounds, since “health” has historically been defined broadly by the Supreme Court to include “physical, emotional, psychological, familial, and the woman’s age” for the purposes of post-viability abortions. This effectively would allow abortion in almost all cases. There are numerous other provisions that would nullify existing South Carolina law, such as a provision allowing the practice of dispensing chemical abortion by telemedicine. Needless to say, Americans United for Life opposes this legislation.
Thank you for your kind attention. I would be happy to take questions from the Committee at this point