To view her testimony click here.
Transcript: Before becoming a part of this subcommittee, I never dreamed I would spend so much time talking about abortion. I came to Columbia to work on improving the lives of my children and all South Carolina children. My service to this state is based on my belief that Jesus taught us to love God and our neighbors, particularly the least of these. Rooted in this faith, I believe that being pro-life means more than just being pro-birth. It means working to serve our neighbors, focusing on access to healthcare, education, housing, mental health treatment, and the environment. South Carolina has the 8th worst rate of maternal mortality in the county. But we’re too busy talking about controlling women’s bodies to do anything that actually keeps our women and babies alive.
Over the past month, I have talked to more scared women and doctors than I could have ever imagined. Doctors scared to practice with the threat of criminal prosecution over their heads. Women scared to start families because they are worried this state will criminalize them if they have a miscarriage, or worse, leave them bleeding out in an emergency room while the hospital’s attorney decides whether or not their doctors can help them. I’ve even talked with businesses scared to come to South Carolina because they see this legislature prioritizing fear and division over the health and safety of our people. And I wish I could reassure them. But the fact of the matter is that South Carolina Republicans are passing a bill that will ban abortions and kill women.
Make no mistake, I understand the political forces at work: our districts are so gerrymandered that the only voices we prioritize are the 20% of South Carolinians who vote in Republican primaries. But most of our neighbors, regardless of their personal position on abortion, believe that abortion should remain safe and legal.
Our ad hoc committee held a hearing where the only invited expert was a lawyer for National Right to Life. She likened abortion to organized crime and recommended that doctors face racketeering-style prosecution usually reserved for gang members, drug lords and criminal kingpins. Republicans are passing a bill that will ban abortion, throw doctors in jail, and kill women. And they are doing so without the testimony of a single health expert. Not one doctor, not one fertility specialist, not one disability advocate has been invited to offer public remarks on the language of this bill. So, it falls on me today to synthesize the written expert testimony, to analyze each section of this bill, and to speak for the majority of South Carolinians on abortion.
I’m going to go into each section in more detail, but I want to start with an overview of what’s in this bill:
It begins with a statement that “it is undisputed that the life of every human being begins at conception” and that the state maintains a fundamental interest in protecting every human being from conception.
Section 810 offers some extremely broad definitions. The bill specifically says a girl need not have “reached the age of majority” to be considered a pregnant woman. This means children, regardless of their age, are subject to this law.
Section 820 makes it a violation to perform a procedure that causes an abortion AND makes it a violation to administer, prescribe, procure, pay for, or sell any medicine that causes an abortion without.
Section 830 purports to create exceptions to abortions performed to prevent the death of a pregnant woman, to prevent substantial risk of death, or to prevent the “substantial and irreversible physical impairment of a major bodily function.” This could mean that while a woman experiences a miscarriage, bleeding out in an emergency room, doctors will be forced to wait until the patient is close enough to death before their lawyers will allow them to help.
Section 840 makes any abortion – by a doctor or medicine – a felony for punishable by a fine of $10 thousand and two years in prison.
Section 850 also allows the public to sue nurses, doctors, and hospitals: specifically allowing a woman, the father, or either of their aunts, uncles, or grandparents to initiate a case. Unlike most of our state’s laws, this bill provides for actual damages, punitive damages, and “statutory damages” of $10 thousand for each violation by each defendant.
Section 870 allows “any person” to initiate a complaint to the State Board of Medical Examiners who are instructed to “immediately” revoke the license of any doctor who violates this statute. We don’t even define the due process owed before we deny their livelihood.
Section 880 gives judge’s discretion on whether or not to protect a woman’s privacy during civil or criminal proceedings.
As an attorney, I think it’s important that we look at each section of the bill in detail to understand the potential impacts, both intended and unintended.
I’ll start with the exceptions for the life of the mother. Rightly, Republicans have touted how generous and compassionate they’ve been in the case of the health and life of a mother. Congratulations, that is the absolute bare minimum pro-life position. I think we’ve still left some gaping questions that I’m not sure how to defend to the women in my life:
First, our South Carolinians with disabilities: According to Able SC, the leading advocates for South Carolinians with disabilities, a person with a disability is twice as likely to live in poverty and three times as likely to experience sexual assault in her lifetime. As a result, disabled people have unintended pregnancies at a higher rate than nondisabled people. Further, many disabilities are specifically exacerbated by pregnancy. What do I tell my client whose daughter with a disability becomes pregnant? Or my co-worker for whom pregnancy will bring her own health into question?
Mental health is especially excluded as a life-threatening exemption in this bill to ban abortion. Before today, we spent a lot of time in Columbia talking about the importance of mental health. But this bill specifically excludes psychological conditions as valid considerations. Did you know a woman has to go off most psychiatric medications to maintain a safe pregnancy? Does an unintended pregnancy mean my neighbor has to quit her life-saving antidepressants or her schizophrenia treatment cold turkey? Good luck surviving for the next 10 months!
And what about our children? As I look at my own daughters, I wonder is it a substantial risk to a 12-year old’s health to carry and deliver a child? And what impact will it have on the child’s life to become a mother at such a young age? According to Dr. Kristl Tomlin, an expert in pediatric and adolescent gynecology, pregnant children are at increased risk of postpartum hemorrhage, mental health conditions, hypertension, obesity, and asthma. Children born to underage mothers are three times as likely to die of sudden infant death syndrome and suffer increased rates of abuse and neglect.
For victims of domestic violence: What do I tell my parent’s neighbor struggling to leave an abusive marriage? We know he uses pregnancy and children as a form of control, and the violence is worse when she’s pregnant. Homicide is the leading cause of death for pregnant women.
How are we treating miscarriages after criminalizing the possession of misoprostol. According to Doctor Tomlin, “Last weekend, when I was on call, I had three women walk through the doors of the emergency room with incomplete miscarriages, and none of them could access the misoprostol they needed to complete their miscarriage because pharmacies have stopped stocking it because it is ‘an abortion medicine’.”
For the conditions we do enumerate in the bill, when is my best friend’s preeclampsia severe enough to count? Does she have to wait until she’s on death’s doorstep or should we just hope the prosecutor agrees the risk was substantial?
And what if my sister’s condition isn’t on the list? Am I asking her doctor to risk two years of prison in hopes that law enforcement will agree that it would have led to substantial impairment of a major bodily function?
Yes, you’ve enumerated a few common conditions, but ultimately, we can’t anticipate every scenario where the medical standard of care still puts a doctor at risk of going to prison. It only takes one zealous prosecutor, with no medical training, to bring charges against a doctor. Don’t think that this risk won’t chill the practice of medicine and make all South Carolina women less safe.
While we’re on this section, let’s also talk about how this bill impacts IVF and fertility treatment. Our bill claims to make an exception for in-vitro fertilization and fertility treatment by saying (F) Nothing in this article shall be construed to prohibit procedures considered the ‘normal standard of care’ by the reproductive medical community. The bill goes on to exclude ‘selective reduction,’ which can be a normal part of the medical standard of care.
It’s of great concern that the bill doesn’t define the ‘normal standard of care’ because this language stands in direct contradiction to two other sections of the bill. It contradicts the opening statement that life begins at conception. It also contradicts the definition of a “pregnant woman” which includes “the entire embryonic and fetal stages of the unborn child from fertilization to full gestation.”
I’m not sure that everyone listening today has a clear understanding of the biological process of a pregnancy. The first four weeks of pregnancy involve a blastocyst traveling down the fallopian tubes and into the uterus. By week five, the cells are typically considered to be an embryo. According to our bill, this is where we start to define a woman as “pregnant.” At the end of week 10, the embryo is now a fetus.
During IVF, doctors create an average of 20 embryos that are later implanted into a woman’s uterus. By creating arbitrary carve outs that contradict with other definitions in the bill, at best we are creating confusion and fear around the process of IVF. For many pro-life activists, this is no different than abortion. It leaves room for politics to enter the exam room. At worst, we are exposing doctors to liability and possible prosecution from zealous prosecutors.
For women hoping to be mothers and the doctors who care for them, this bill is not clear cut and could never address all the situations a doctor surely will face. The bill refers to “reasonable medical judgment,” which is not the same as medical liability standard, ‘standard of care.’ You’ve created opposing standards of civil liability – a damned if you do, damned if you don’t situation.
I want to share an excerpt from the testimony to Dr. Dawn Bingham, an OB-GYN specialist from the University of South Carolina. She says:
“You are asking doctors to weigh incredibly complex medical information to determine the best treatment for the patient and in many cases they can’t offer that treatment unless they place their own freedom and ability to practice at risk.
Imagine yourself sitting across from your own doctor right now. Your doctor says “I have some bad news. Your condition is getting worse. It is possible that you could die from this condition over the next 9 months but we can’t be 100% sure. There have only been a few cases of this condition in people who have all the other medical issues you do. In the face of this uncertaintly I cannot give you treatment nor can I legally provide you with information to try and get the treatment elsewhere.”
It is impossible for prudent physicians with reasonable judgment to focus 100% of their attention on what is best for the patient in front of them when they can’t be sure whether they will be accused of a felony and imprisoned. Putting doctors in this position is shameful and prevents them from only focusing on the patients’ needs.
These laws force doctors to violate medical ethics.
Patients rely on doctors to behave according to professional ethics.
The existing six week ban and even more so the proposed bills make it a crime for doctors to adhere to widely accepted norms of medical ethics by providing accurate information, respecting patient autonomy, and referring patients in a timely manner when we can’t legally take care of them ourselves.
Given these risks and uncertainties, there is no faster way to drive doctors out of our state than by threatening them with criminal prosecution, civil lawsuits, and licensure penalties. South Carolina already has 12 counties without a single OB-GYN, and we are only exacerbating that problem.
Back to Dr. Bingham. She says
“There will be two tiers of medical education and care. Residency programs in restricted states will be unable to attract the best candidates and their graduates will have a diminished skill set. Doctors in multiple specialties will leave these states because the state government has outlawed doing the right thing and readily criminalized physicians for what is an accepted standard of care.
For the same reasons, new doctors will not want to come here. Ultimately, this will decrease the quality of care available to women in SC. Already, the largest Healthcare recruiting companies, cited 20 instances of hospitals since the Supreme Court ruling where prospects specifically refused to relocate to states where reproductive rights are being targeted by lawmakers.”
One doctor told us that she spends as much time meeting with lawyers as she does caring for patients.
The irony of this committee passing a “Medical Ethics” bill on the heels of telling doctors they can’t practice to the medical standard of care is astounding.
Aside from all these health considerations, women also have abortions because they are not ready or able to be parents. We all know and love someone who has had an abortion. Whether you knew it was happening or not, someone in your life has made this excruciating decision on a very dark day.
I want to share the testimony of Dr. Angela Dempsey, an SC OBGYN with 15 years of experience and who has served on the board of the American College of Obstetrics and Gynecology. Her testimony sheds light on who is actually having abortions in South Carolina. The narrative that only irresponsible young women use abortion as birth control is simply false:
First, 51% of women who seek an abortion were using contraceptives at the time they became pregnant. According to Dr. Dempsey, no contraceptive is 100% effective: Tubal ligation (having your tubes tied), IUDs, and implants all have a 1/200 chance of pregnancy. Less expensive contraceptives like birth control pills have a 7% rate of failure and condoms have a 13% rate of failure. Our state health plan doesn’t even cover contraceptives for those under 18. Second, 3 of 5 women seeking an abortion already have children at home. Third, women of faith do have abortions: 17% identify as protestant; 13% identify as evangelical; and 24% identify as Catholic.
So, what happens to this mother who was on birth control and goes to church every Sunday under our bill? Republicans say it doesn’t make her a criminal, but that conveniently ignores Section 44-41-820(A), which makes it a violation to pay for or procure abortion medication. Medical abortions account for over half of abortions in the US, and this section DOES make a woman a felon if she buys an abortion pill. Or if your daughter becomes pregnant, and you procure abortion medication, you are now a felon and subject to $10,000 in civil liability if the father or his family brings suit.
We’re also subjecting women to the incredible stigma of abortions by allowing a woman’s name to be public in these criminal and civil cases. Section 880 gives a judge discretion and requires the court would have to affirmatively seal the records to protect a woman’s identity. And don’t get me started on the rape and incest exceptions in our current 6-week abortion bill. They require a woman to recount her trauma to law enforcement before she can seek an abortion. If we truly cared about women, these records would be automatically sealed, but I’ll have to presume this is designed as a shaming tactic.
We know the majority of South Carolinians don’t support this bill. It doesn’t adequately protect the health of women, it turns doctors and women into criminals. So why do we have it?
Because it has been spoon-fed to South Carolina by national organizations. I said at the beginning that the Ad Hoc committee’s only invited expert was an attorney from the Bopp Law Firm on behalf of the National Right to Life Committee. We know that these groups prey on the fear of good people by putting out messages about using abortions as birth control and “late term abortions of convenience.” These arguments are obviously ridiculous and designed to create fear. But fear sells. Between its various subsidiaries, the National Right to Life raised nearly $8 million dollars last year in fear-based fundraising around these issues.
But what we may not realize is what big business the litigation based on these issues is. The Alliance Defending Freedom has made a fortune off the backs of everyday people on this type of litigation. Last year alone, they made $54 million dollars. Their attorneys are very clear that having state legislatures pass bills goes hand in hand with their litigation strategies. They create the political pressure in Republican primaries to pass the bills they need to design the lawsuits they want. This committee will remember the Alliance Defending Freedom from the Medical Ethics bill we passed last session. The ADF attorney highlighted the Illinois Medical Ethics bill, which he told you all had been in place for decades. You’ll recall that in my questions for him, I asked about the Rojas case, which the ADF litigated and obtained damages of nearly half a million dollars. It was only after they made money on the Rojas case that they started shopping the medical ethics bill to other states. These bills are big business – both for political fundraising and for litigation.
With that in mind, let’s discuss this abortion bill’s civil penalty section. Remember, it gives standing to a woman, the father, aunts, uncles, or grandparents and provides for actual damages, punitive damages, and “statutory damages” of $10,000 for each violation by each defendant. As many of my attorney colleagues will tell you, lawyers typically have to convince a jury of actual and punitive damages. Other laws don’t have these minimum “statutory” damages, and this is quite literally the foxes designing and building the henhouse. This is the profit model that these national organizations need to profit off of the backs of our South Carolina doctors, hospitals, and even our state itself. And who takes home a third of that money? Groups like Alliance Defending Freedom, who designed the lawsuit based on the language of the law they themselves wrote.
In fact, I’m not sure what’s stopping every day people from following this same get rich quick scheme. A pregnant couple get an abortion, then sues the doctor, the nurse, the hospital, and the state if it’s MUSC. We’re guaranteeing them actual damages (including for the same psychological considerations we didn’t care about in the women’s health exception), punitive damages, and statutory damages, that minimum guarantee of $10,000 for EACH defendant.
What’s worse, we don’t even define the “criminal conduct” that would bar you from such enrichment. If a child doesn’t report her stepdad’s incest, can he still sue? If a rapist isn’t convicted, at trial, can he still sue? Or even if a rapist is convicted, can his aunt and uncle sue because it wasn’t their criminal conduct that resulted in the pregnancy. It’s hard to pick out the worst part of this bill, but this is a pretty offensive section.
Basically, to keep these litigation groups in business, South Carolina Republicans have been spoon-fed a bill that will ban all abortions and kill women.
Why do I feel so strongly about speaking out on this issue? Because I know first-hand that pregnancy can be extremely dangerous, even in the best of circumstances.
Many of you know my youngest daughter, Lola Kate. But you may not know the reason she doesn’t have any younger siblings. I started out with a pretty healthy pregnancy – I had the support of my husband and family, access to excellent health care, and I was so excited about the baby we’d be bringing into the world. That all changed one Tuesday afternoon when I experienced a placental abruption. I was standing on my front porch, hemorrhaging blood and begging 911 to get in touch with my husband at work. As I was being rushed to the hospital in the ambulance and wheeled into the ER, I am so thankful that we still had excellent doctors here in SC. I am so thankful that my doctor didn’t have to waste time with the hospital’s legal counsel to ask whether my condition was enumerated in 44-41-830(A)(3)(C). I am so thankful I got the treatment I needed, in and out of the hospital over the next several months including an emergency C-Section, to bring Lola Kate into this world. But because of this history, I cannot risk another pregnancy and the excruciating decision of what would happen without such excellent medical care.
I shudder to think what world we’re leaving for my daughters, where we have sold out to the pocketbooks of national organizations and abandoned our South Carolina women and doctors.