South Carolina Puts One More Boulder Into the Path to Abortion Access

Debbie Billings

South Carolina's "Woman's Right to Know" Act assumes that women make the decision to abort without thought and that the state should, therefore, impose a 24-hour period post-ultrasound during which they might reflect.

H.3245 is the latest attempt by South Carolina’s
legislature to undermine women’s ability to access safe abortion services. 
H.3245 effectively mandates a 24-hour waiting period for women seeking
an abortion, if she has an ultrasound to determine gestational age. 
If she does not have an ultrasound, then 24 hours still needs to pass
after a woman receives state-prepared
materials
.  Section
1(2)(a) of H.3245 states specifically that, "The woman must
be presented by the physician who is to perform the abortion or by an
allied health professional working in conjunction with the physician
a written form containing the following statement: ‘You have the right
to review printed materials prepared by the State of South Carolina
which describe fetal development, list agencies which offer alternatives
to abortion, and describe medical assistance benefits which may be available
for prenatal care, childbirth, and neonatal care. You have the right
to view your ultrasound image.’ This form must be signed and dated by
both the physician who is to perform the procedure and the pregnant
woman upon whom the procedure is to be performed."   The
proponents of H.3245 are dressing this as "informed consent". 
It’s also called the "Women’s Right to Know" Act within South Carolina’s
abortion law
.  
The use of both terms truly distorts the meaning of a very important
process in which any health care provider concerned about human rights
fully engages. 

South Carolina’s existing abortion law (Section 44-41-50) states that medical employees
("physician, nurse, technician or other person") are not required
to aid in abortions and cannot be demoted, dismissed, suspended or otherwise
disciplined by the employer.  

Throughout the state, only three clinics
provide elective abortion services; 91
percent
of South Carolina
counties have no abortion provider.  South Carolina’s existing abortion law states that before obtaining an abortion,
a woman must be informed by the physician performing the abortion of
the probable gestational age of the fetus.  The three clinics that
provide first trimester elective abortion services routinely conduct
pre-abortion ultrasounds precisely to determine gestational age. Whether
or not this is medically necessary, clinics are following this practice
to protect themselves from malpractice suits and attempts to shut down
their services.  The "if" in H.3245 does not provide women
with a realistic opt-out option.  Performing an abortion without
the ultrasound proof of gestational age would leave providers vulnerable
to sanctions that could further limit women’s access to abortion services
in South Carolina.

Ultrasound has been touted in the public
eye as a fail proof technology that serves to "inform" women about
their pregnancy.  Yet determining gestational age without an ultrasound
is possible by a trained professionals; this is accomplished throughout
the world.  Ultrasounds must be interpreted and if this is done
by someone who is not trained to appropriately use the technology, the
"information" generated can be erroneous. (The extent to which this
is happening in anti-choice pregnancy "counseling" sites throughout
the US needs to be documented).  On March 19, 2009 I had the opportunity
to testify before South Carolina’s Senate Medical Affairs Subcommittee. 
Public testimony was given both by supporters and opponents of H.3245,
speaking to Subcommittee members Senators Thomas, Fair, Hutto, Pinckney and Bryant in 2-minute spots.  Supporters of the
Bill included several women who had negative abortion experiences during
the 1970s (including pre- Roe v. Wade).  One woman asked the Senators
to think about the "times that they gone shopping with their wives
and how long it took them to pick out a new dress." (Note: South Carolina has no female Senators).  This same woman emphasized the ways
in which "women’s bodies are raging with hormones" and how they
"needed help in making the decision to end life."  Others attributed
divorce, anger and food disorders to women terminating their pregnancies. 
Opponents of H.3245, including two physicians from two of the three
clinics that provide abortion services in South Carolina, emphasized
that most women seeking care have already reflected and come to their
decision to end their pregnancies.  In my own testimony, I stated
that, "This bill will negatively affect the ability of many women
in our state to access a legal medical service.  When a 24-hour
delay is put into place, women who do not have flexibility in their
jobs to be able to take off from work for several days and women whose
financial situation does not allow for making two office visits for
a service that should take just one will be most severely affected. 
In addition, the delay for many women may become much longer than 24
hours, as they find it impossible to make a second appointment within
the 24-hour period.   This delay can make the abortion more
expensive and less safe, especially if women seek untrained providers
or their own ways of ending their pregnancies."  

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I included these points in correspondence
to Senator John Courson, urging him to help defeat H.3245.  His
response included his understanding that H.3245 would put South Carolina
in line with 26 other states and that "for such a sensitive and important
issue, the 24-hour wait time does not seem to be unreasonable." 
Not unreasonable for whom?  He ends his correspondence by trying
to appeal to my "feminine side", I suppose, by stating, "Of the
seventeen women serving in the South Carolina General Assembly, only
four voted against H.3245."   Clearly Courson wants me to
see that most women in the General Assembly were "reasonable"; my
own conclusion is that we need to fully support the four women that
voted against H.3245 in educating their fellow Assembly members, both
women and men. 

H.3245 assumes that women make the
decision to abort quickly and without thought and that the State of
South Carolina should, therefore, impose a 24-hour period post-ultrasound
during which they might reflect.  Given the grave shortage of safe
abortion services in South Carolina, I suspect that during that 24-hour
period few women will be engaged in deep meditation and most will be
scrambling to find childcare, figuring out a way to take several days
off of work or school instead of just one, and finding an affordable
place to stay for several nights until the 24-hour period elapses since
most will have to travel for both the ultrasound and the abortion procedure. 
This, of course, assumes that they are able to schedule the abortion
for within 24 hours of the ultrasound. Many women will also be working
on a way to raise the funds to pay for two medical visits instead of
just one.  More than 326,00
female residents
of South
Carolina have no health insurance coverage.  Even women who have
insurance coverage through the State
Health Insurance Plan
must
come up with the cash themselves, unless the pregnancy is a result of
rape, incest or places the woman’s life at risk.   Some
may travel to neighboring states.  Others will find the barriers
to be insurmountable and will continue with their pregnancies. 
This is the true goal of proponents of H.3245 and of other constant
attempts to impose legislation to make abortion services less and less
accessible in South Carolina.   

Proof:  On April 6th The Greenville
News Published a 650 word article by Anti-Choice Senator Mike Fair titled "Waiting Period Makes
Sense."
Senator Fair,
a publicly elected official who sees no line between Church and State
exclaims:  "H.3245 simply reflects common sense."  Why? 
Because according to him "The leading cause of death is abortion. 
Approximately 1.2 million unborn children die due to elective abortion
each year…Pregnancy should be a blessing.  Many do not recognize
the blessing at the time, but that is true of very many of the blessings
God bestows upon us….More time will equate to more life." 
Which way do you think Fair is voting on H.3245?

On April 3rd the Senate Committee on
Medical Affairs passed H.3245 with a vote of 10-6.   Roll
Call was not taken.  The Bill is now on the Senate Floor Calendar. 
South Carolina will be the first state to attempt to require that if
an ultrasound is performed, a mandatory 24-hour delay go into effect. 

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

071midyearstateabortionstable

In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

Roundups Politics

Campaign Week in Review: Trump Selects Indiana Gov. Mike Pence to Join His Ticket

Ally Boguhn

And in other news, Donald Trump suggested that he can relate to Black people who are discriminated against because the system has been rigged against him, too. But he stopped short of saying he understood the experiences of Black Americans.

Donald Trump announced this week that he had selected Indiana Gov. Mike Pence (R) to join him as his vice presidential candidate on the Republican ticket, and earlier in the week, the presumptive presidential nominee suggested to Fox News that he could relate to Black Americans because the “system is rigged” against him too.

Pence Selected to Join the GOP Ticket 

After weeks of speculation over who the presumptive nominee would chose as his vice presidential candidate, Trump announced Friday that he had chosen Pence.

“I am pleased to announce that I have chosen Governor Mike Pence as my Vice Presidential running mate,” Trump tweeted Friday morning, adding that he will make the official announcement on Saturday during a news conference.

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The presumptive Republican nominee was originally slated to host the news conference Friday, but postponed in response to Thursday’s terrorist attack in Nice, France. As late as Thursday evening, Trump told Fox News that he had not made a final decision on who would join his ticket—even as news reports came in that he had already selected Pence for the position.

As Rewire Editor in Chief Jodi Jacobson explained in a Thursday commentary, Pence “has problems with the truth, isn’t inclined to rely on facts, has little to no concern for the health and welfare of the poorest, doesn’t understand health care, and bases his decisions on discriminatory beliefs.” Jacobson further explained: 

He has, for example, eagerly signed laws aimed at criminalizing abortion, forcing women to undergo unnecessary ultrasounds, banning coverage for abortion care in private insurance plans, and forcing doctors performing abortions to seek admitting privileges at hospitals (a requirement the Supreme Court recently struck down as medically unnecessary in the Whole Woman’s Health v. Hellerstedt case). He signed a ‘religious freedom’ law that would have legalized discrimination against LGBTQ persons and only ‘amended’ it after a national outcry. Because Pence has guided public health policy based on his ‘conservative values,’ rather than on evidence and best practices in public health, he presided over one of the fastest growing outbreaks of HIV infection in rural areas in the United States.

Trump Suggests He Can Relate to Black Americans Because “Even Against Me the System Is Rigged”

Trump suggested to Fox News’ Bill O’Reilly that he could relate to the discrimination Black Americans face since “the system [was] rigged” against him when he began his run for president.

When asked during a Tuesday appearance on The O’Reilly Factor what he would say to those “who believe that the system is biased against them” because they are Black, Trump leaped to highlight what he deemed to be discrimination he had faced. “I have been saying even against me the system is rigged. When I ran … for president, I mean, I could see what was going on with the system, and the system is rigged,” Trump responded.

“What I’m saying [is] they are not necessarily wrong,” Trump went on. “I mean, there are certain people where unfortunately that comes into play,” he said, concluding that he could “relate it, really, very much to myself.”

When O’Reilly asked Trump to specify whether he truly understood the “experience” of Black Americans, Trump said that he couldn’t, necessarily. 

“I would like to say yes, but you really can’t unless you are African American,” said Trump. “I would like to say yes, however.”

Trump has consistently struggled to connect with Black voters during his 2016 presidential run. Despite claiming to have “a great relationship with the blacks,” the presumptive Republican nominee has come under intense scrutiny for using inflammatory rhetoric and initially failing to condemn white supremacists who offered him their support.

According to a recent NBC News/Wall Street Journal/Marist poll released Tuesday, Trump is polling at 0 percent among Black voters in the key swing states of Ohio and Pennsylvania.

What Else We’re Reading

Newt Gingrich, who was one of Trump’s finalists for the vice presidential spot, reacted to the terrorist attack in Nice, France, by calling for all those in the United States with a “Muslim background” to face a test to determine if they “believe in sharia” and should be deported.

Presumptive Democratic nominee Hillary Clinton threw her support behind a public option for health insurance.

Bloomberg Politics’ Greg Stohr reports that election-related cases—including those involving voter-identification requirements and Ohio’s early-voting period—are moving toward the Supreme Court, where they are “risking deadlocks.”

According to a Reuters review of GOP-backed changes to North Carolina’s voting rules, “as many as 29,000 votes might not be counted in this year’s Nov. 8 presidential election if a federal appeals court upholds” a 2013 law that bans voters from casting ballots outside of their assigned precincts.

The Wall Street Journal reported on the election goals and strategies of anti-choice organization Susan B. Anthony List, explaining that the organization plans to work to ensure that policy goals such as a 20-week abortion ban and defunding Planned Parenthood “are the key issues that it will use to rally support for its congressional and White House candidates this fall, following recent setbacks in the courts.”

Multiple “dark money” nonprofits once connected to the Koch brothers’ network were fined by the Federal Election Commission (FEC) this week after hiding funding sources for 2010 political ads. They will now be required to “amend past FEC filings to disclose who provided their funding,” according to the Center for Responsive Politics. 

Politico’s Matthew Nussbaum and Ben Weyl explain how Trump’s budget would end up “making the deficit great again.”

“The 2016 Democratic platform has the strongest language on voting rights in the party’s history,” according to the Nation’s Ari Berman.