Is South Carolina trying to quietly pass unconstitutional abortion regulations?

Is South Carolina trying to quietly pass unconstitutional abortion regulations?

South Carolina is maybe, possibly, ever so slightly and ever so sneakily trying to tack further abortion restrictions onto its already restrictive abortion laws. Officials are seeking to impose hard-to-meet operating burdens on clinics, further limit the period in which a woman can get an abortion and require a married woman to obtain her husband's consent before she can end a pregnancy. 

The policy adjustment would come not through new legislation or amendments, but with the quiet passage of revisions made to South Carolina's Regulation 61-12: Standards for Licensing Abortion Clinics, initially adopted in 1996 to establish day-to-day requirements for abortion facilities. Regulations do not enjoy the same attention as bills do, but they have the same effect as laws do — in this case, jeopardizing a woman's right to choose.

"Many of these proposed changes are medically unnecessary, unconstitutional and clearly designed to further impede a woman's ability to make the deeply personal decision to seek safe, legal abortions," Vicki Ringer, South Carolina Director of Public Affairs for Planned Parenthood South Atlantic, said in an emailed statement, adding that the revisions were "intended to shame women and put barriers in their way of seeking constitutionally protected medical care." 

That agency responsible for the policy change, the Department of Health and Environmental Control (DHEC), admitted in an emailed statement that the proposed language included a handful of errors. Some of the points were not meant to be there — some, but by no means all.

Points of contention in R 61-12

R 61-12 has not been updated since its introduction 20 years ago; in the meantime, Gov. Nikki Haley signed into law the Pain-Capable Unborn Child Protection Act, which made it illegal for women to obtain abortions after the 20th week of pregnancy, even in cases of rape and incest. Twenty weeks is about one month shy of viability, which typically occurs around 24 weeks and is the legal marker for abortion as set forth in Roe v. Wade

The newly proposed terms of R 61-12 would go further. Were the regulation to be approved as-is, women would have 18 weeks from their last period in which to obtain an abortion at a licensed facility. And that's just one of the purposefully inconvenient measures the regulation imposes.

Per R 61-12, abortion clinics would have to have "at least one obstetrics and gynecology board-certified physician on staff who has admitting privileges at one or more local hospitals" who is available around the clock. If a doctor has admitting privileges, they retain the right to admit their patients at the hospital in question, but for outpatient procedures like abortion, hospitalization is not necessary. 

For this reason, many consider admitting privileges another hoop through which abortion providers must jump to keep on doing their jobs, but the inconvenience runs deeper: According to the Week, many hospitals won't grant abortion providers admitting privileges — which put physicians who have them on essentially the same level as hospital staff — because they don't want to get tied up in controversy. Even if they were a necessary precaution (and again, they're not), they're hard for doctors who perform abortions to get.

Admitting privileges comprise one reason why, in June's Whole Woman's Health vs. Hellerstedt decision, the U.S. Supreme Court struck down a Texas law that imposed the same burdens on abortion clinics. In that ruling, the court also decided against the requirement that abortion facilities meet the same standards as Ambulatory Surgical Facilities, Justice Stephen Breyer writing that there was "no evidence in the record" that any of these extreme measures — purportedly imposed to keep patients safe — were necessary or appropriate for abortion clinics. Surprise, surprise: DHEC's proposed revisions to South Carolina's abortion regulation hold abortion facilities to the same standards as Ambulatory Surgical Facilities.

But the most eye-catching point in the proposed R 61-12 revisions might be this: Women who are married and living with their husbands must have a signed notice of their husband's consent included in their patient files. Under both 1976's Planned Parenthood v. Danforth and 1992's Planned Parenthood v. Casey, however, women seeking abortions cannot be forced to get consent from their spouses, or even forced to notify them.

In an emailed statement, DHEC public information officer Robert Yanity said that the regulation's stakeholders set up a meeting to address some flawed language in the current draft. He explained that the line about a husband's consent was "included in error." Husband consent isn't mentioned once in the unrevised regulation suggests, though, which makes the fact that these husbands are mentioned twice in the revisions seem either suspicious or rather sloppy. 

The regulation's requirement that all women obtaining abortions undergo full STI testing, meanwhile, was apparently misstated. Testing was "supposed to be carried forward as a continued recommendation," Yanity said, and not made obligatory.

But the regulation's shrinking of the time frame in which women can legally go to an abortion facility and end a pregnancy was neither misstated nor mistakenly included. Nor was the language surrounding admitting privileges, and nor were the ASF requirements. And according to an emailed statement from a Planned Parenthood representative, none of the adjustments to the flawed language had been presented, in writing, as of Monday morning. 

Flying abortion restrictions under the radar

If that reads to you as somewhat shady, it's because, in all likelihood, it's shady by design. When asked in a phone interview on Thursday if this was a measure to sneak further abortion restrictions onto South Carolina's record without too many people noticing, Ringer replied: "Exactly right. It is something of an underhanded way to further restrict women's access to legal health care."

The methodology here is key: Regulations are not laws, but the difference between the two is, for practical purposes, negligible. Regulations decide how laws are enforced on a day-to-day basis, and therefore carry the same weight. Typically, Ringer explained, regulations don't get much attention and aren't even discussed on the House floor, although this one probably will be, as it pertains to a contentious topic. 

Regulations take a similar path to approval as laws do, she said: The agency responsible for regulating particular laws (in this case, DHEC) first drafts its proposed regulations, then posts them to a public forum. The public is then given 30 days to review and comment on the proposed regulation; the agency may makes changes (or not) based on that feedback. DHEC will likely propose R 61-12's final draft board of directors sometime in December, according to an emailed statement from DHEC. If the board signs off, the regulation will go to the state legislature for approval. 

These revisions represent only the first step in a very long process, but they're significant because of the apparent intention behind them: This is an easy way to legally tighten abortion restrictions without many people noticing.

While a controversial law, like the Pain-Capable Unborn Child Protection Act, might generate headlines as it makes its way through South Carolina's General Assembly, a regulation probably won't. And this one, Ringer noted, is particularly hard to find on DHEC's website — indeed, a search of the site doesn't bring it up, and while R 61-12 is mentioned in a DHEC development update from September 2016, the unrevised version of the regulation is much easier to find than are the proposed revision. To find the revisions — which include the questionable admitting privileges and spousal consent requirements — you have to go to the website for the South Carolina statehouse, enter 4669 in the search box, and download the document, or have been lucky enough to stumble upon this alarming Reddit post.

Transparency is not the point

Even if people knew that revisions to the abortion regulation were coming down the pipe, it's hard for anyone to make comments on a proposal they can't find. And that seems to be precisely the point.

DHEC declined to offer further comment on the regulation, leaving Mic to rely on the statements of interested parties for corroboration of this theory. South Carolina Citizens for Life, among the state's leading pro-life lobbyist groups, had quite a bit to say on the matter. 

When asked in an email if the language about spousal consent was unconstitutional, Holly Gatling, SCCL's executive director, agreed that it was, and that it remains illegal under the "current law." But, she also stressed that R 61-12 isn't a law. 

As for whether the regulation effectively shrinks the window in which a woman can legally obtain an abortion, Gatling nodded to the Pain-Capable Unborn Child Protection Act and said, "The window of opportunity for saving innocent life is opening wider." Which is to say: Yes. 

It's troubling, particularly because abortion is at its most polarizing in years. According to the Guttmacher Institute, the first six months of 2016 saw 445 pieces of abortion-restrictive legislation introduced across the country. In 17 states, 46 new restrictions passed into law, with a string of states across the South and Midwest adopting similar omnibus bills that imposed unrealistic operating requirements on clinics. 

South Carolina's quiet side-stepping of federal abortion law isn't unique: Other states have used similarly surreptitious tactics to curtail women's right to choose without having to pass legislation. In May, Missouri legislators cut funding for Planned Parenthood from the state's budget, aiming to torpedo abortion access and at the same time, taking out access to a wide range of women's health services. In 2013, Virginia's Board of Health approved a regulation obligating abortion clinics to satisfy the same building codes as surgical centers, effectively forcing the clinics' closure. 

While women retain the right to safe and legal abortion under federal law, on a state-by-state level, governments are chipping away at that right. It's become less about preserving women's well-being and much more about leveraging political power, even as the people who abortion restrictions allegedly protect lose out. 

"Simply put, the regulations are based in politics, not medicine," Ringer said in the Planned Parenthood statement. "We stand with South Carolina women and will fight these burdensome, unconstitutional and medically-unnecessary regulations."