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Draft version of SC abortion bill raises concern among First Amendment experts

South Carolina map

A bill making its way through the South Carolina legislature would place a near-total ban on abortions, prohibiting the procedure except in cases where the life of the mother is at risk.

The measure, a draft of which is currently being considered by the state senate's Medical Affairs Committee, would also criminalize helping a person obtain an abortion — including providing information about how to obtain an abortion. Under the current bill draft, a person who provides information could be prosecuted if they know the information "will be used, or is reasonably likely to be used for an abortion" — and could face up to 25 years in prison.

Indiana-based attorney James Bopp, general counsel for the National Right to Life Committee, which opposes abortion rights, helped draft the South Carolina bill.

“National Right to Life wants to restore full legal protection to the unborn under the law,” Bopp said. “Since Roe v. Wade has been overturned, we can now do that.”

But some legal experts think parts of the bill are on shaky legal ground — and may violate the U.S. Constitution.

“This particular law is constitutionally overbroad,” Eugene Volokh, a law professor at the University of California, Los Angeles who specializes in First Amendment law, said. “It covers speech that is constitutionally protected.”

According to Volokh, the "aiding and abetting" portion of the draft bill would have more legal standing if it was narrowly focused on illegal abortions in the state.

“If abortion is illegal and Supreme Court has said that it could be made illegal, then that does allow punishing at least certain kinds of speech related to abortion — just like this is true with all crimes,” he said.

The courts have repeatedly decided speech that encourages or solicits a person to commit a crime is not constitutionally protected, Volokh said. Just like assisting in a robbery could carry criminal penalties, he said, assisting in someone’s illegal abortion could legally carry penalties, too.

Jessie Hill, a law professor at Case Western University, said the problem with the South Carolina bill is it doesn’t seem to distinguish between illegal and legal abortions.

“For example, there's nothing that says specifically that the abortion being facilitated or about which information is given,” Hill said. “It doesn't say that that has to be an illegal abortion.”

That, Hill said, could lead to punishing people who provide information about how to get abortions in other states, like North Carolina, where the procedure is legal.

“If the abortion services are legal in those other states, then giving information about that is not normally a crime. And it can't be,” Hill said. “The states can't generally apply their laws beyond their own borders in that way.”

Hill said criminalizing speech about a legal procedure likely violates the First Amendment since it’s not inciting or encouraging someone to commit a crime.

Bopp, of the National Right to Life Committee, maintains the bill is focused on illegal abortions and is fully constitutional.

“South Carolina only has authority over acts committed in their own state," Bopp said. "And this would be an illegal abortion, which means an abortion illegal under the laws of South Carolina. If an actual abortion occurred outside the state, then it's not covered and it can't be covered.”

The Medical Affairs Committee has scheduled a full-day of public input on South Carolina abortion legislation post-Roe for Aug. 17. The draft measure could be changed before going before the full state Senate for a vote.

Lars Lonnroth is a journalism and political science student at Mercer University in Georgia. He's interning at WFAE.
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