A blown up photographic rendition of a human egg. Credit: Ed Uthman/ Flickr/Creative Commons

A bill that gives human rights to embryos is headed to the South Carolina Senate floor

Since 2013, legislators have brought the same wording to the South Carolina General Assembly at least eight times in an attempt to ban all forms of abortion. The proposed “personhood” bill would extend the right to equal protection under South Carolina law to include the human embryo, making abortion a homicidal act and raising questions about the legality of birth control and reproductive assistance. Until recently, bills making this argument haven’t made it far in South Carolina, but the 2017-2018 legislative session has been different. This year’s anti-abortion effort has a new energy behind it, empowered by a stronger anti-abortion platform from the national GOP and the support of one of the most determined anti-abortion activists ever elected to the State Senate.

The bill defines personhood as beginning at fertilization, and states: “The General Assembly acknowledges that personhood is God-given, as all men are created in the image of God.”

After a raucous debate on February 20, the latest version of a personhood bill, S. 217, has made it out of committee proceedings for the first time since this strategy took shape, and is expected to hit the Senate floor this week. The bill introduces the term “preborn person” into the state’s laws on abortion, effectively making abortion illegal–even in cases of rape. The bill defines personhood as beginning at fertilization, and states that “The General Assembly acknowledges that personhood is God-given, as all men are created in the image of God.”

This is the first attempt to establish personhood before birth to gain this much traction.

“I don’t see it passing and becoming law,” says Sen. Mia McLeod (D-Columbia), who sits on the Judiciary Committee, “but for it to get out of a committee of seemingly rational people is scary.”

Activist leadership in the South Carolina Senate

The religious language in the personhood bill didn’t fall from the sky. S. 217’s new primary sponsor is a long-time anti-abortion activist. Sen. Richard J. Cash (R-Piedmont) was elected to the Senate after the bill’s original sponsor, Kevin Bryant, resigned from his seat just under three weeks after its first reading. That shift was set off by the election of President Donald Trump, when Bryant left his post to assume the position of lieutenant governor as Henry McMaster took over the governor’s office, after Trump appointed former Gov. Nikki Haley Ambassador to the United Nations.

Sen. Cash, much like his predecessor, is a noted activist with a reputation for being one of the most conservative members of the legislature. But Cash represents a new breed of elected official in the GOP due to his actual rap sheet. During his 2014 campaign for U.S. Senate, Cash boasted about having been arrested 10 times for “peaceful protests at abortion clinics, standing up for what is right.” From 1989 to 1993, Cash was arrested in Massachusetts, North Carolina, South Carolina, and Washington, D.C., for activities carried out with the controversial anti-abortion group Operation Rescue and a pro-life ministry called Pastors for Life. The used car salesman’s campaign themes have been consistently far right, with abortion at the top of the list.

Cash defended the fact that the bill doesn’t address pregnancies caused by incest or rape. “If a child is raped, yes that is a horrible act … but two wrongs don’t make a right,” he said.

Since Sen. Cash took up the Personhood Act, supporters from around the country have expressed encouragement and gratitude via social media, and Gov. McMaster continued his support for this bill. After the committee vote last week, the governor praised the result. “I believe that human life begins at conception,” he said in a statement, “and I believe the people of South Carolina deserve for their laws to reflect the values they hold dear.”

In recent years, state legislators across the country have stepped up their attempts to redefine “personhood” in attempts to use the law to outlaw abortion and thus pose a direct challenge to Roe v. Wade, the Supreme Court decision that legalized abortion. The South Carolina bill extends individual rights to “born and preborn persons beginning at conception.” State legislatures in Mississippi, Florida, Georgia,and Texas have also seen recent attempts at personhood bills.

Activists have pushed this particular tactic in anti-abortion activism for close to a decade, but this renewed energy echoes sentiments of the national GOP. Since 2012, the party has included the idea of personhood in its platform, which states, “We assert the sanctity of human life and affirm that the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution.” The Sanctity of Life Act was introduced in Congress by Republican Rep. Walter B. Jones of North Carolina in January 2017 (he’s the guy who brought us the phrase “freedom fries.”) That bill states that “each human life begins with fertilization, cloning, or its equivalent, at which time every human has all the legal and constitutional attributes and privileges of personhood.”

The wording of these bills is in direct conflict with Roe v. Wade, the majority opinion of which stated “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Sen. Cash recently told The State newspaper, “We are trying to challenge the Supreme Court on their fundamental error that a human being is not a person.”

In mid-February, members of the South Carolina Senate Judiciary Committee voted 12 - 9 in favor of sending the personhood bill to the floor for debate. Credit: Shani Gilchrist/Scalawag

Confusion in committee

During Senate Judiciary Committee meetings, South Carolina legislators engaged in a heated and somewhat surreal debate over the bill’s scientific, fiscal, and constitutional scope. Legislators weren’t clear on whether “life” begins before or after a fertilized egg is implanted in the uterus, or whether the bill would outlaw in vitro fertilization. A couple of hours before the matter returned to the full judiciary on February 20, Sen. Cash introduced an amendment to the bill, causing more confusion and complaints from committee members who hadn’t had time to review it before meeting. The amendment was an attempt to address the concerns voiced by members of both parties while reserving the right to legislate reproductive assistance in the future. The amendment also raised questions about whether the bill would outlaw contraceptive measures such as birth control pills, due to disagreement on when the moment of fertilization occurs. “Nothing in this article shall be construed to prohibit contraception. [...]‘Contraception’ is defined as the prevention of fertilization,” the amendment reads.

Many Democrats in the room were visibly exasperated by Cash’s doggedness. He persisted in repeating that his amendment would keep reproductive assistance legal, but when pressed on what should happen to fertilized eggs left behind when a couple moves on, he stated that disposing of the frozen eggs—which he argues are people—would be criminal. When pressed harder, he backtracked, returning to repeating his core message using the words “intent to kill a preborn human being.”

Passing personhood in any state would mark a huge symbolic victory for the GOP’s anti-abortion activists, and South Carolina may become a testing ground for just how far they can take their cause.

Two women Senators pressed Cash particularly hard—Margie Bright Matthews (D-Colleton) and Mia McLeod (D-Columbia). The sparring between Cash and Matthews mostly centered on whether or not a fertilized egg is granted constitutional rights even if it never implants into the uterus. “There’s no distinction here saying that a fertilized egg is in utero versus outside because you and I both know that a fertilized egg—unless it enters the uterus—it is not going to be viable. It cannot become an infant nor a fetus, correct?” Matthews pressed.

“You are simply talking about human lives that do not continue to the next day of development,” Cash responded.

“No, I’m talking about the problems in this bill of not defining properly what fertilized eggs are,” Matthews said.

Cash defended the fact that the bill doesn’t address pregnancies caused by incest or rape. “If a child is raped, yes that is a horrible act… but two wrongs don’t make a right,” he said.

After continuing the back and forth, the exchange between Cash and Matthews turned into a bit of a pissing match over which of the two has more children (Matthews has four, Cash has eight), with Matthews ending it by stating that Cash never actually gave birth to any of his children, and therefore had no real life experience with conception and pregnancy.

Still, the bill passed the committee in a 12 - 9 vote, with most voting along party lines. Sen. Sandy Senn (R-Charleston), who is new to the state legislature, voted against the measure in the previous judiciary meeting, but this time she abstained. “I’m not going to vote against a pro-life measure,” she said, “but I cannot vote for this because I believe it’s unconstitutional.”

During the full committee debate, Democrats relied on statements from physicians and medical organizations. The American Society of Reproductive Medicine stated that the bill “ignores scientific and medical fact, it threatens the reproductive rights of women, and thwarts the ability of those who suffer from infertility to seek treatment appropriate for their disease.” The American College of Obstetricians and Gynecologists also opposes the measure, raising concerns over the fact that bill would grant full constitutional rights to all fertilized eggs, even though one-third to one-half of these never fully implant in the uterine wall. Cash claimed his bill had the support of  “Christian OB/GYNs” at several points during the committee debate. Before the debate ended, McLeod settled her gaze on on Cash and asked him, “What will you say to Christian OB/GYNs who disagree with your arguments?” Cash didn’t respond.

The South Carolina Senate is expected to begin full debate on the personhood bill February 27. If the bill were to pass the General Assembly and become law, a legal challenge would be forthcoming. It might not be the one to overturn Roe v. Wade, but the overall effort is a part of the GOP’s attempt to chip away at abortion rights. Passing personhood in any state would mark a huge symbolic victory for the GOP’s anti-abortion activists, and South Carolina may become a testing ground for just how far they can take their cause.

  • About

    Shani Gilchrist is a journalist, essayist, and critic based in Columbia, SC. Her work has appeared in The Daily Beast, Longreads, and Catapult. She covers South Carolina politics for Scalawag.