Written by Zane McNeill, Civil Rights & Health Equity Legal Fellow
A South Carolina bill that would have created one of the nation’s most extreme abortion bans has failed to advance in the state Senate. If passed, the bill would have outlawed nearly all abortion care, removed exceptions for rape, incest, and fatal fetal anomalies, and imposed prison sentences of up to 30 years on anyone who obtains or assists with an abortion, including the pregnant person. Although abortion-rights advocates rightfully celebrated the blocking of SB 323, legal scholars point out that pregnant people in the state already face scrutiny and even criminalization for pregnancy loss, despite the fact that abortion itself is not formally criminalized. “[W]e know that the people of South Carolina have long been subjected to criminalization related to their pregnancy or pregnancy outcome,” the National Women’s Law Center (NWLC) wrote in its written testimony opposing SB 323.
In fact, just before the bill’s hearing, a 20-year-old woman was charged with attempted murder for allegedly attempting to terminate her pregnancy. Her arrest is just the most recent incident in the long history of South Carolina engaging in pregnancy criminalization, a term for when a pregnant person is arrested for pregnancy-related reasons, or has bail, sentencing, or probation conditions made stricter because they become pregnant after being charged with an unrelated offense. The state was an early adopter of policies prosecuting people who tested positive for drugs while seeking prenatal care or giving birth, a practice that disproportionately targets Black women. Additionally, well before the U.S. Supreme Court overturned Roe v. Wade in 2022, more than 100 women in South Carolina had already faced criminal charges related to conduct during pregnancy or their pregnancy outcomes.
While South Carolina currently ranks as the third most aggressive state in prosecuting pregnant people, with prosecutors initiating 62 cases in the state from 2022-2024, pregnancy criminalization is an issue nationwide. According to the reproductive advocacy group Pregnancy Justice, in the first two years after Dobbs, prosecutors in 16 states brought at least 412 cases against pregnant people for actions connected to pregnancy, pregnancy loss, or childbirth.
After the Supreme Court overturned the constitutional right to an abortion in 2022, scholars and advocates warned that police might use period-tracking apps and other digital tools to surveil and criminalize pregnant people. While this certainly remains a concern, research shows that arrests and prosecutions usually start with tips from people the pregnant person trusts—family members, friends, social workers, or healthcare providers.
In fact, 39% of cases involving investigations or arrests for self-managed abortions, or assisting someone with one, were initiated by healthcare provider reports. The American College of Obstetricians and Gynecologists (ACOG) strongly opposes pregnancy criminalization and has released a statement reminding clinicians that they “have an obligation to both understand the legal environment in which they practice and how laws in various states affect care and to protect patient autonomy and confidentiality and the integrity of the patient-clinician relationship.”
Many such incidents stem from misunderstandings about mandatory reporting requirements and how reporting may violate state and federal privacy laws that are designed to protect patient autonomy, confidentiality, and the integrity of the patient–clinician relationship. Thus, ACOG has called on “[p]rofessional and legal advocacy organizations [to] work to make resources available to health care professionals to help them navigate these complexities.”
While the delay of SB 323 offers only temporary relief and does not erase South Carolina’s history of criminalizing pregnancy, legal advocacy groups are meeting this call by working to push back against the broader national trend of punishing pregnancy. At Lawyers for Good Government, we support providers by publishing a biweekly reproductive-news digest and update a hub with every state’s abortion laws daily. We also work with healthcare systems to help them better understand how to provide care in restrictive states while still staying legally safe. Individual attorneys also have a role to play in combating pregnancy criminalization–prosecutors can refuse to misuse criminal statutes to prosecute pregnancy loss, defense attorneys can defend clients against cases of pregnancy criminalization, and every lawyer can volunteer their time and expertise to safeguard reproductive freedom.