The “South Carolina Prenatal Protection Act”, as explained by sponsor Josiah Magnuson, would notably redefine personhood in South Carolina law and provide no exceptions for rape or incest.
Staff Writer Evi Houston
The South Carolina Legislature began its 126th session on Jan. 14 with the introduction of the “South Carolina Prenatal Protection Act”, a bill seeking to escalate abortion prohibitions in the state by redefining personhood. The bill would roll back protections the state currently has regarding abortion in the first six weeks of pregnancy to a complete ban by classifying the practice at any stage of fetal development as homicide. While its success in the House is uncertain, the bill and the arguments of its proponents reflect a national trend towards restricting abortion access following the 2022 Dobbs decision.
The bill centers the prosecution of illegal abortions, notably allowing life sentences and capital punishment to those found guilty of the “homicide of unborn children”. This possibility has drawn widespread negative attention to the act from Republicans and Democrats alike for its drastic measures, as took place during its original introduction in the 2023 congressional session.
The bill is predicated on the belief that life begins at the “moment of fertilization”, and that from this moment on, the justice system is required to provide due process to all persons, regardless of their legal status. This includes protections against homicide and assault of all people.
Representative Josiah Magnuson, Republican and member of the far-right Freedom Caucus, is one of the seven sponsors of the bill and a staunch supporter of these sorts of legal protections since 2018.
Magnuson gave his argument for the bill to The Johnsonian, saying “Equal protection means that everybody should be treated equally. You have the laws that protect born people be the laws that protect unborn people. Those same laws should apply across courts.”
The legal rights of what some (but not all) would classify as a person is an undoubtedly murky area. For this reason, conservative lawmakers draw from the Equal Protection Clause of the Fourteenth Amendment, an amendment originally intended to prevent legal discrimination towards former slaves, to assert that while a fetus cannot be given the respect of full citizenship, it should still receive the protections guaranteed for all people, as is done with immigrants.
When asked about this technicality, Magnuson explained, “The 14th Amendment makes clear that citizenship begins at birth. It talks about how everyone born in the United States is a citizen, but then it goes on to say that the state shall not deny the due process of law, including life, liberty or property, to any person within the United States [..] they can’t deny equal protection to any person within the jurisdiction of the United States.”
The bill asserts that it is righting the wrongs of the current policy allowing abortions within the first six weeks of pregnancy by “removing provisions that enable the commission of wilful prenatal homicide and assault.”
This focus on prosecuting homicide has invited outcries over its intended consequences in the courts. According to South Carolina law, homicide, particularly to those under age eleven, can be punished by the death penalty. This takes prosecution of the once-legal practice to a new extreme, although Magnuson feels coverage regarding capital punishment has been overblown.
“There’s no penalties mandated in the bill at all, that would be up to the court system. If these crimes are committed, a homicide crime, that would be judged by a jury, and then you know, there would be sentencing, which would be something totally different.”
The sponsor views such harsh punishments as merely hypothetical, defending their potentiality in saying “this bill is more of a deterrent.” He goes on to say, “No one has ever been prosecuted in the United States under any real life law so far. There’s just no one willing to do it. There’s no attorney generals willing to do it. There’s no solicitors willing to do it. And part of this is because there’s no good evidence.”
This conflict between the bill’s assertions of prosecution and due process and its proponents clear understanding that such a penalization is unlikely to materialize makes it unique on a national scale, attempting to impose a full ban on abortion using semantic arguments of personhood while doubting that such language would ever be utilized in court.
Another unique aspect of the bill is its lack of provision for abortions in cases where pregnancy was the result of rape or incest. Magnuson defended this choice, saying “If you’re a human being, then you’re a human being. It shouldn’t matter. […] Murder is not the answer to rape. The answer to rape is compassion, and the answer to rape is to prosecute law.”
There are two primary exceptions in the bill which would immunize individuals who have received an abortion. If the defendant can testify that they were coerced or forced into having an abortion against their will, they are no longer held accountable for homicide. Elaborating on what he felt was a common misconception of the bill, Magnuson said “Anybody, any party to the crime, could be charged. So that means a man could be charged if he pushes a woman to have an abortion […] It’s not just targeting women.”
Life of the mother and unintentional, spontaneous miscarriages are additional considerations in the bill. The act carves out that an abortion performed due to “threat of imminent death or great bodily injury” will not be subject to such restrictions.
Magnuson reiterated, “There’s not going to be a situation where somebody is going to be held for criminal penalties for making some sort of decision in a medical emergency.”
When asked about the trajectory of the Prenatal Protection Act for this session, Magnuson said,
“We have been told that House leadership does not want to take up any pro-life bills this year. They don’t want to touch the issue right now. So for someone like me, that’s disappointing, because I think that the lives of these unborn children do matter. We’ve seen where the numbers of abortion have gone down in South Carolina […] That’s where, even though we don’t have prosecution, it is a deterrent, and we know that it works.”
The representative believes that his take on the issue, while unpopular in the legislature, is shared by the majority of his constituents in Spartanburg County. “It’s almost unanimous, the people who I represent believe that the unborn child is a person […] There’s differences of opinion on how to get to the end zone, but I think in my district, everybody agrees that abortion needs to be made completely illegal, eventually.”
Giving a final word on his support for the bill, Magnuson rallied against its media portrayal and categorization as extreme, saying “This is still in the Republican Party platform of the state. If you go and look at it, this is how it’s explained, the unborn child from conception is considered a person and is worthy of equal protection under the law. This bill just put into effect that platform plank of the Republican Party.” He continued that Democratic voices have exaggerated the consequences of the bill for their “propaganda purposes.”
The South Carolina Prenatal Protection Act is currently sitting in the House’s Judiciary Committee, who will determine whether to bring it to the floor as the 2025 session continues.
