UPDATE: South Carolina residents, tell your lawmakers to vote YES on H3560: https://p2a.co/cBRMqTT. This bill provides 12 weeks paid maternity leave for state employees. Bills like this reduce abortion rates, not abortion bans.
Photo by Bill Oxford on Unsplash
Recently South Carolina became the next in a long line of temporarily successful attempts to ban abortion at the state level. The state legislature passed S1, the Fetal Heartbeat Bill, the first bill of the 123rd session comprising 2021-2022 and it was signed into law — and then immediately blocked.
Plenty of the bill’s objectors have stated that this law will be overturned as unconstitutional while costing the state time and taxpayer dollars, making it a pointless and wasteful enterprise, to say nothing of its unconstitutionality. We saw this happen with other attempts to block abortion access in 2020 in Georgia, Maryland, Alabama and Louisiana. But still, the number of states attempting to pass abortion blocks and bans of various kinds is staggering, and with Amy Coney Barrett’s appointment to the Supreme Court in October, many South Carolina GOP lawmakers are hopeful that their bill may stand a chance.
Defenders of abortion rights are quick to say that “no one wants an abortion” but that there are myriad reasons why the choice must be left up to the woman and her doctor. With regard to this particular bill in my home state, I’d like to touch on just a few of them that point out the hypocrisy and unconstitutionality of this bill.
First, if this bill presupposes that heartbeat equals fully human life, then the rape and incest clause is hypocritical. If it’s life, it’s life; it doesn’t matter how it occurred. To claim that a pregnancy resulting from rape or incest puts an undue burden on a woman is to ignore the reality that every pregnancy puts a burden on the woman. This is a medical reality regardless of the circumstances of conception. What this exception does instead is to punish women who have had sex voluntarily, which is appalling. This is a moral judgment that cannot be determined by law. We live in a democracy, not a theocracy.
Second, despite the presupposition of S1 that heartbeat equals fully human life, it is not medically or scientifically clear is that a 6-week fetus is a person. However, it is absolutely clear that a pregnant woman is a person. Where are the pregnant woman’s rights in this case? Women can be imprisoned for having miscarriages under this bill. Women do have a right to their own bodies. Until a fetus can viably live outside the woman, it cannot legally be its own person; it is dependent upon the woman’s body for life, giving it the technical definition of a parasite.
Thirdly, woman cannot get pregnant without sperm. Therefore, the provider of the sperm should also be held accountable in this bill as a participant in the pregnancy, to either be prosecuted or to provide support for the duration of the enforced pregnancy. But you can’t find a way to do that legally, can you? Therefore, you cannot hold the woman solely responsible for carrying an unwanted pregnancy to term. This is sexist, unequal, and hypocritical.
Fourth, Republican lawmakers who claim to be fiscally conservative, and the constituents who vote for them, are hypocritical when they pass bills that cost the taxpayer money in legal fees. Republican state senator Sandy Senn made this abundantly clear in her comments on the senate floor: "When we pass this unconstitutional legislation, an injunction will be entered. This I'll-advised law will fall, and it will be costly. ... In the next four years I will be able to show the fiscal impact of our folly, but you will not be able to show me the impact of one baby saved."
She goes on to say that Republican lawmakers who are most vocally in support of abortion bans "are the same legislators who don’t want to fund prenatal care for those upon whom they would impose mandatory childbirth because they believe in 'personal responsibility,' but what they really mean is maternal responsibility for having the audacity to have had what is often premarital sex." Money will not be spent to support women with unwanted pregnancies, but it will be spent to defend an unconstitutional bill.
Finally, the Supreme Court has found that abortion is a right based on the Fourteenth Amendment to the Constitution. It is in bad faith that state legislatures seek to limit access to abortion in such a way as to effectively ban it.
Pregnancy is not a punishment for having sex. Pregnancy is not always a result of so-called irresponsible sex. Birth control measures can fail. Despite this, birth control remains the most effective way to reduce abortions. Abortion bans do not have this effect; instead, they drive abortions underground, increasing the risk to the woman. Once again it is clear that bills like this do not value the life of or risk to the woman. This is not a bill about equal rights. It is a bill about putting a fetus’s rights ahead of a human being’s.
Once again, I have to turn to the words of Senator Senn, a Republican, a woman, a mother, and a lawyer, as she identifies herself: "In abortion debates, 'reasonable' always goes out of the window because the arguments become theological. Theology has no place in this debate. ... It is time that abortion not even be a part of the party platform because it is largely a religious issue. And do remember that just because the extremists are the loudest, that does not make them the majority."
I wrote to Senator Sean Bennett regarding this bill, which he voted for, and in his response to me he called this a “very emotional and difficult issue.” It may be an emotional and difficult issue for some people, but that is not how we make laws in this country. There are clear facts, and those must be what lawmakers use to make their decisions:
The facts are that outlawing abortion can put women who have miscarriages at legal risk.
The facts are that outlawing abortion does not prevent or reduce abortions but forces them underground and creates a dangerous black market for unsafe abortions, putting women’s lives at risk.
The facts are that access to contraception and financial assistance reduces abortions.
The facts are that outlawing abortion does infringe upon a woman’s right to make decisions for her own body and has no place in a pluralistic democratic society.
The fact is that abortion bans costs taxpayers money in state legal fees. If you want the right to not have your tax dollars go toward federal funding for abortions and programs that provide them, I want the right to prevent mine from being used in lawsuits when the bans are blocked.
In particular, the men in the South Carolina legislature representing female constituents have a very serious responsibility to vote on laws like this based on facts, not emotions. The fact that they have not done so is to their shame. Their personal emotions, beliefs, and religion have no bearing on this matter. I repeat: personal religious beliefs cannot inform this bill, and the fact that they have is fundamentally irresponsible and unconstitutional.
As Sen. Senn once again so clearly puts it: "No woman wants to have an abortion. Everyone in this room is pro-life, but you gentlemen aren’t at risk of having an unborn life trump your life."
This should be clear to these lawmakers, but the fact that it is not means that they are derelict in their duty to uphold the Constitution. Although they have betrayed their democratic ideals, and have been encouraged to do so by constituents who are advocating for a theocracy, there is no way to remove them except by lawful, democratic means in the next election. We all have a very serious responsibility to acknowledge what the Constitution requires, even when it goes against our personal beliefs.
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