Stunted by losses, SC Democrats predict abortion ban will pass as it clears next step
South Carolina’s Senate Democrats will get their first big test in the new year after they lost three seats to Republicans in November, shrinking the party’s power in the upper chamber.
By next month, the state Senate plans to adopt one of the strictest pieces of anti-abortion legislation — S. 1, the so-called fetal heartbeat bill that would essentially stop abortions from being performed once a fetal heartbeat is detected at around six weeks when most women find out they are pregnant.
The bill cleared the nearly all male 17-member Senate Medical Affairs Committee Thursday by a 9-8 vote.
Only two Republicans voted against the bill: Sens. Tom Davis, R-Beaufort, and Sandy Senn, R-Charleston.
In past years, Senate Democrats have been nearly successful in stopping almost every piece of anti-abortion legislation from exiting the chamber by bogging the bill down with poison amendments designed to kill them and finding support across the aisle.
But this year, the 16-member Democratic Caucus will walk into the abortion debate — an almost yearly tradition — severely weakened after Republicans flipped three long-held Democratic seats with conservative senators who have vowed to support any bills they say that protect life.
Democrats also face the test of a new chamber rule that chips into one of their best used procedural tools: the filibuster. Senators agreed this month to curb the powers of single lawmakers aiming to derail legislation, a tool that has helped Democrats wield power even as the minority party.
Senate Minority Leader Brad Hutto, D-Orangeburg, declined to talk strategy to The State this week.
However, the new leader said Tuesday it is unlikely Senate Democrats can maintain an eight-week-long filibuster to make their points, the way their colleague, state Sen. Mike Fanning of Fairfield County, took that same amount of time last year to try and kill an education bill.
“It’s possible amendments are proposed,” Hutto said of another procedural tool that can help bog down debate or go as far to make a bill less attractive to its supporters. “Our position is, this bill is unconstitutional and it’s a waste of time.”
Democrats have blasted their colleagues for pushing through a bill that has a high chance of a court rejection, and they have criticized their counterparts for making abortion the chamber’s No. 1 priority during one of the worst virus outbreaks South Carolina has seen.
They argue the state already has a 20-week abortion ban on the books, signed into law by former Gov. Nikki Haley in 2016.
Conservative Republicans who back the measure, however, point to the new makeup of the U.S. Supreme Court after now-former President Donald Trump was able to swear in Amy Coney Barrett, his third conservative justice ahead of the November election.
But with hardly a full month of floor work on the calendar, the strategy on the part of Republicans also is evident.
By shoving the issue at the forefront of a two-year session, senators can deal with the issue quickly and get to other debates.
“It’s going to cost the state umpteenth tens of thousands of dollars in legal fees, and we’re going to lose,” Hutto said. “It’s never going to change anything. It’s all for show.”
Exceptions driving rift
A tangle in the bill for some Republicans is that currently it does not exempt women who become pregnant due to rape or incest.
An attempt to add that exception proposed by Sen. Davis failed Thursday after a 7-4 vote. All six Democrats abstained, a decision that inevitably will put more moderate Republicans unwilling to back the bill without those exceptions in an uncomfortable position.
However, it does allow doctors to perform an abortion if the mother’s life is at risk or faces serious physical impairment.
And the committee added a provision that prenatal, delivery and postnatal costs be covered if the mother does not have insurance.
Another provision in the bill also would charge a doctor with a felony if they perform the abortion an illegal abortion. If convicted, that doctor would face a $10,000 fine, two years of prison or both. Those who get an abortion would be immune from prosecution.
Roughly two years ago, those same exceptions became the focus of a heated debate in the House chamber after then-state Rep. Nancy Mace — now a freshman member of the U.S. House, who describes herself as pro-life — detailed her rape as a 16-year-old and persuaded her Republican colleagues to allow for a rape and incest exception in the proposed “fetal heartbeat” abortion ban.
The House eventually adopted that legislation, sending it to the Senate where it died.
Davis said the exception for him is about weighing two competing rights: the right of the unborn child and the right of the mother.
“I don’t think it would gut the bill,” Davis said in response to another Republican senator. “I think the bill would (still) do what it says it does, constrain abortions if the heartbeat is detected after eight weeks. ... For me it is not unreasonable to say an instance where a woman has become impregnated as a result of rape or incest, that is a fact that should be taken into account.”
Davis, a Catholic who describes himself as pro-life, later told The State he will not support the bill unless those exceptions are added to the bill on the floor.
“A big part of it is going to depend on what the Democrats do,” Davis told The State. “Are they going to do what they did today and just abstain to keep it the way it is, or vote in favor of it and vote those exceptions back in. Of the 30 members of the Senate Republican Caucus, there’s probably a majority that would pass the bill without the exceptions. That means if you want exceptions, there will have to be some Democrats voting for that and that didn’t happen in committee or subcommittee. So, I don’t know what their strategy is going to be on the floor.”
Davis said there are three to four Republican senators who feel the same way.
State Sen. Richard Cash is not one of them.
On the matter of principle, Cash said Thursday pro-life should mean pro-life, no matter how the child is conceived.
But on a practical matter, the Anderson Republican also said that “killing the unborn baby in the case of rape can certainly be a way of covering up a rape that took place,” especially because the legislation does not include a reporting requirement.
“And the implication is that I, pro-life people (are stating) the law is forcing the woman be pregnant,” Cash said. “And, so, I just want to say, from my point of view, that the only one who has done the forcing is the rapist. The rapist has forced the woman to be pregnant. And yet, the unborn child, ... is going to pay the penalty for that crime of forcing should this be allowed.”
Should the bill become law — the likeliest scenario after S.C. House GOP leaders and Gov. Henry McMaster said they support it — it surely will face a series of court challenges just as similar legislation signed by Republican governors did in other states.
In Georgia, for example, a federal judge there struck down the peach state’s abortion law last year and called it unconstitutional.
In his ruling, District Judge Steve C. Jones wrote that the law violated a woman’s legal right to access abortion procedures allowed by the Supreme Court’s 1973 ruling, Roe. V Wade, the Atlanta-Journal Constitution reported. Georgia has since appealed that decision.
“There’s nothing special about this bill being passed. To the extent that the courts want to hear that issue, other cases are out there to hear this issue,” Hutto said, adding that the courts have other similar cases before them that deal with a similar issue. “That’s why it’s a complete waste of time.”
Democrats ready for debate
A savvy political mind described by his colleagues, Hutto has successfully crippled anti-abortion legislation before.
Nearly three years ago during a tense three-day debate over a so-called “dismemberment” abortion ban — a procedure rarely used to terminate at-risk pregnancies, typically when the pregnancy is late term by using forceps to pull apart an unborn fetus before removing it in pieces — Hutto proposed a poison amendment that would have banned virtually all abortions performed in the state.
Senate Republicans eventually gave in well after midnight after they failed four times to sit down Democrats from filibustering.
With no end in sight, GOP Senate leaders said then that they worried about getting other priorities done before the calendar ended.
This year, Republicans have the upper hand.
Beyond their now 30 Senate members, Republicans also have leverage over Democrats’ use of the filibuster after the chamber adopted a new rule this month that allows any sitting member — with supermajority support — to sit down a colleague while also limiting the number of amendments that that senator can argue and for how long.
“We will have amendments prepared to sort of make our points, but we also recognize they have the majority and if they are hellbent on passing an unconstitutional bill, there should be ramifications for that. They ought to have to pay attorney fees,” said Hutto, a lawyer.
Unlike past years, when hundreds of advocates and opponents have staked out room in the lobby outside the Senate chamber, because of COVID-19 the fanfare is unlikely to return in the same size, an issue that might prove difficult for lobbyists on either side.
But Ashley Crary Lidow told The State the Women’s Rights and Empowerment Network told The State Thursday that WREN plans to “ensure that folks who want to speak out against this egregious abortion ban” know who their state senator is.
“Nothing about today’s conversation was surprising,” said Lidow, WREN’s lobbyist. “We’ve worked with these legislators year after year trying to educate them on women’s right and economic well being in this state.”
A representative from South Carolina Personhood was not immediately available for comment.
This week, the pro-life group sent an email out asking South Carolinians to call three particular Republican senators — Senate President Harvey Peeler, of Cherokee, Davis and Senn — saying they have been “more than willing to side with Democrats and add pro-death exceptions to pro-life legislation.”
Out of the three, Peeler was the only senator to vote in the bill’s favor.
“They are misleading constituents by pretending to be doing something when they’re not,” Hutto said. “I don’t know how many times they will try to pull the wool over constituents’ eyes. No policy is going to change as result of this action, and it’s going to continue to be frustrating to their (Republican) supporters. They’re not going to have accomplished anything.”
Emily Bohatch contributed to this report.
This story was originally published January 21, 2021 at 1:54 PM with the headline "Stunted by losses, SC Democrats predict abortion ban will pass as it clears next step."
