The legislation, which faced a filibuster led by five women senators, now heads to the governor who has said he will sign it.
The South Carolina Senate passed a ban on abortion after six weeks of pregnancy on Tuesday, after a filibuster led by five women senators, including three Republicans, failed to block it. The bill will drastically reduce access to abortion in a state that has become an unexpected destination for women seeking the procedure as almost every other Southern state has moved toward bans.
The legislation now heads to Gov. Henry McMaster, a Republican who has said he will sign it. The ban will almost certainly be challenged by abortion-rights advocates in court, where it would test a State Supreme Court ruling in January that struck down a previous six-week ban and found a right to abortion in the State Constitution.
The legislation had exposed divisions among Republicans over how far to go in restricting abortion, a struggle that has played out in other legislatures in the year since the U.S. Supreme Court overturned Roe v. Wade, returning the regulation of abortion to the states.
The women who filibustered, calling themselves the “Sister Senators,” argued that the bill set up so many hurdles that almost no one would be able to get an abortion in South Carolina. Because pregnancy is considered to start on the first day of a woman’s last menstrual period, six weeks is roughly two weeks after she has missed a period, before many women know they are pregnant.
The bill requires any woman seeking an abortion to first have two in-person doctors’ visits and two ultrasounds. Senator Katrina Shealy, one of the Republican women who opposed the six-week ban, said on Tuesday: “We are not God. We need to let people make decisions for themselves.”
The governor had called a rare special session of the legislature to try to pass a ban, seeking to resolve a standoff between the House and Senate.
While both chambers are controlled by Republicans, the House is more conservative and had pushed three times to get the Senate to pass a bill banning almost all abortions starting at conception. Three times, the women in the Senate and three Republican male colleagues successfully filibustered. The Republican women argued instead for a 12-week ban, or to put the question to voters in a ballot measure.
From left, State Senators Sandy Senn, Katrina Shealy, Mia McLeod, Penry Gustafson and Margie Bright Matthews.Credit…Audra Melton for The New York Times
Two of the Republican women had agreed, as a compromise, to a six-week ban with exceptions for medical emergencies, fatal fetal diagnoses and cases of rape and incest. The Senate passed that bill, but because the House added amendments it had to vote again.
The women had warned their House colleagues not to make changes to the bill: “Don’t move a semicolon,” Senator Sandy Senn, a Republican, said. Instead, the House added amendments that the women said would effectively ban all abortions.
The amendments included the requirements for the doctors’ visits and ultrasounds, and cut a provision that would have allowed minors until 12 weeks to obtain an abortion or seek a waiver from a judge if they could not get parental consent. Opponents of the bill noted that the state’s three abortion clinics currently had a two- or three-week wait for an appointment, and that adding requirements for more visits would mean no one would be able to obtain a legal abortion.
The House version also added declarations of fact that the State Supreme Court had criticized when it struck down the previous six-week ban. One says that cardiac activity, which can be noticed around six weeks, is a “key indicator” that a fetus will result in a live birth. Another says that the state has a “compelling interest from the beginning of a woman’s pregnancy to protect the health of the woman and the life of the unborn child.”
The legislators who filibustered argued that this could be seen as a declaration that a fetus is a person, opening the door to a ban at conception.
The bill also allows the state board of medical examiners to revoke the medical license of any doctor who violates the law, and allows anyone to file a complaint. Parents of a minor could file a civil suit against a doctor who performed an abortion.
The Republican leadership in the legislature had been eager to pass a ban that could challenge the State Supreme Court decision from January. The justice who wrote that decision was the only woman on the bench, and she made ample reference to the expansion of rights for women since Roe was decided in 1973.
But she retired shortly after and was replaced by a man, making South Carolina the only state with an all-male high court.
Republicans, including the women who tried to filibuster the bill, had been concerned about the rising number of abortions in the state since other Southern states enacted bans. According to state health officials, roughly half of all abortions in recent months have involved residents of other states.
In the days leading up to the debate, Shane Massey, the Senate majority leader, declared that South Carolina had become “the abortion capital of the Southeast.”
“The pro-life members of the Senate believe this is unacceptable,” he said.