Davis: SC abortion debate isn't over. The only way out is through.

By Tom Davis

Date: May 30, 2023

Last week, the S.C. General Assembly passed a bill banning abortions once a fetal heartbeat is detected, at about the six-week mark in a pregnancy, with exceptions for when a pregnancy is the result of rape or incest, the life or health of the mother is at risk or the unborn child is diagnosed with a defect incompatible with surviving outside the womb.

Gov. Henry McMaster signed S. 474 into law on Thursday, replacing the state's 22-week ban with a six-week ban. And Friday, S.C. Circuit Judge Clifton Newman, appropriately in my judgment, blocked the new law until the state Supreme Court can rule on its constitutionality.

The six-week mark is not where I would strike the balance between the right of a woman to bodily autonomy and the right of the unborn child to be born. That’s why I supported an amendment offered by my friend and colleague, Sen. Katrina Shealy, to extend the right to an abortion to the first trimester.

Once that amendment failed, on a 21-25 vote, I had to choose between a six-week ban or the existing 22-week ban. For the third time in two years, I chose six weeks, because that more closely aligns with how I balance the competing rights, and because allowing an abortion through the 22nd week is antithetical to being pro-life, and I am pro-life.

To understand where things are likely to go from here, it is useful to recall what’s transpired in the year since the U.S. Supreme Court reversed Roe v. Wade:

• On Aug. 31, the House voted to ban abortions from conception, i.e., when a sperm fertilizes an egg, and required a woman to carry to term an unborn child diagnosed with a fatal fetal anomaly.

• On Sept. 8, I blocked that bill via filibuster.

• On Jan. 5, the state Supreme Court ruled that a 2021 fetal heartbeat law, which had been stayed until Roe was overturned, was an unconstitutional violation of the right to privacy set forth in the state constitution.

• On Feb. 9, the Senate passed a new fetal heartbeat bill that revised the 2021 law to address the constitutional defects noted by the court in January.

• On Feb. 16, the House passed another bill banning abortions from the time of conception.

• On April 27, I worked with my five female colleagues and other senators to kill the new House bill via filibuster.

• On May 17, the House passed an amended version of the Senate’s fetal heartbeat bill, changing it slightly from the Senate version.

• On May 23, the Senate concurred with the House amendments and sent the bill to the governor, who signed it May 25.

• On May 26, Judge Newman stayed enforcement of the law until the Supreme Court rules.

Even if the court ultimately finds the new law constitutional, as I think it will, it would be a mistake to conclude that this debate would then be settled. Elected officials will continue to advocate their views, as will the people of South Carolina, and this democratic process will continue to be messy. But in this matter as with other issues that intensely impact so many everyday lives, the only way out is through.

As the debate continues, the Legislature must also consider these issues: immunity from civil and criminal penalties for a physician who performs an abortion the physician believes is necessary to protect a woman’s health; reproductive health education for students that includes age-appropriate and medically accurate instruction in contraception; improved access to free contraceptives, particularly in rural communities; and increased funding for our child welfare system.

It would be legislative malpractice to have an abortion debate that neglected these ancillary issues.

Tom Davis is a Beaufort attorney who represents Beaufort and Jasper counties in the S.C. Senate.