Women Who Get Abortions Could Be Charged With Homicide Under South Carolina Bill

Abortion “death penalty” bill doesn’t mention the death penalty. More than 20 South Carolina lawmakers are proposing the death penalty for women who get abortions, according to a slew of major media reports making the rounds this week. But the truth—while still very bad—is not quite as disturbing as these articles suggest.

The proposal in question is a bill called the Prenatal Equal Protection Act (H. 3549). It was sponsored by Rep. Rob Harris (R–Spartanburg) and attracted 21 co-sponsors as of March 2—although six of these co-sponsors have removed their names from the bill this week.

The gist of the bill is defining personhood to begin at fertilization. From a legal perspective, this is, quite frankly, bonkers on many levels. People cannot even tell they are pregnant until weeks after fertilization. And the majority of fertilized eggs do not go on to become viable pregnancies; somewhere between 10 and 40 percent will die before even being implanted in a woman’s uterus, and upwards of 50 percent may eventually be miscarried. Legally defining personhood as beginning at conception creates all sorts of thorny issues, from the serious (should the state start investigating all miscarriages as potential homicides?) to the odd (can a pregnant woman legally drive in a carpool lane?).

But the idea that personhood begins at conception is not a totally fringe idea: fetal personhood laws have been considered in a number of states and passed in five (Alabama, Arizona, Georgia, Kansas and Missouri). And implicit in this concept is the idea that all laws applying to me and you—including laws against assault and murder—would equally apply to all “unborn persons.”

That’s what South Carolina’s proposed Prenatal Equal Protection Act would make explicit. It would amend the sections of the state code related to murder and assault to say that the term person “includes an unborn child at every stage of development from fertilization until birth.” This change would mean that women who get abortions could be charged with homicide, and women who injure a fetus in some way could be charged with assault.

This is a terrible idea—perhaps especially the second part, which would not just affect people who get abortions but anyone who acted in a way that could possibly injure a fetus. It’s the type of laws that could lead to increased surveillance, restrictions on, and criminalization of pregnant women across the board. And for women who did attempt an abortion in South Carolina, it could mean prosecution as a murderer.

The bill contains provisions stating that “where the victim is an unborn child and the defendant is the child’s mother, it is a defense to prosecution under this article that the mother engaged in the proscribed conduct because she was compelled to do so by the threat of imminent death or great bodily injury,” and that “medical care or treatment provided with the requisite consent by a licensed physician to avert the death of a pregnant woman that results in the accidental or unintentional injury or death of her unborn child when all reasonable alternatives to save the life of the unborn child were attempted or none were available does not constitute a violation of this article.” Nonetheless, the severe penalties attached to the death of a fertilized egg, embryo, or fetus could make it much harder for pregnant women whose life or health is at risk to get the care th