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SC legislators could consider banning abortion in a special session after justices rule

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Senate Majority Leader Shane Massey, R-Edgefield, speaks during a debate March 30, 2022, in the Statehouse. On Tuesday, May 10, 2022, he explained to his colleagues the proposed rules for special legislative sessions, which could include debate on abortion. File/Jeffrey Collins/AP

COLUMBIA — The Legislature could take up bills outlawing abortions in South Carolina during special sessions later this year if the U.S. Supreme Court overturns the landmark Roe v. Wade ruling as expected.

A resolution setting the rules for when legislators can return — and what they can consider — after the regular session ends at 5 p.m. May 12 specifies they could consider legislation responding to justices' ruling on a Mississippi law that outlaws abortion beyond 15 weeks.

According to a drafted opinion leaked to Politico, a majority of justices support overturning the 1973 ruling that made abortion legal nationwide, which would let states decide if and when abortions are legal. If that's confirmed by the high court's actual ruling expected this summer, South Carolina legislators could move quickly.

Under the proposed special session rules approved by senators 36-8 on May 10, topics that legislators can debate after June include addressing the high court's ruling. When the Legislature returns would depend on the chambers' leaders. Only they would have they power to call the bodies back. In June, legislators must focus on getting the budget finalized.

The resolution goes to the House for approval. 

If it gets the required supermajority vote in that chamber too, Gov. Henry McMaster would not have the authority to force legislators back, despite what he said last week after the draft opinion written by Justice Samuel Alito was leaked.

Sen. Gerald Malloy, D-Hartsville, urged his colleagues to support the resolution for that reason. 

Without a resolution governing special sessions, the Republican governor will call one himself, without parameters or legislators' input on the timing, he said.

"We know he will. Make no mistake," Malloy said. This "gives the Senate the ability to come back at the time of your choosing. 

"I don't want to get caught up on what's in it," he said in explaining his vote. "It’s more important to have a sine die (agreement on meeting again) than not have one, regardless of the substance. I’m not going to take the chance."

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His comments came after Democrats threatened to hold up the resolution unless they could get hate crimes legislation added to the list of what the Legislature could take up in special sessions.

South Carolina is among two states without a law laying out penalties for crimes motivated by hate. A bill adding prison time for such crimes passed the House last year but has not been taken up by the full Senate, despite pleas from Democrats in recent weeks to allow a floor vote.

"It is a very simple ask," Senate Minority Leader Brad Hutto said about allowing the hate crime bill to stay alive for special sessions. "We just want a debate on this. I know some of you are dead-set against and some are OK with it. At least we’ll have the opportunity if minds change, if hearts change."

His amendment failed on a 25-20 vote. If nothing changes in the next two days, the hate crime bill will need to be reintroduced next year, for the process to start anew.

The resolution sets specific dates for two special sessions in June — one to finish up work on the state budget and the other to take up McMaster's line-item vetoes on the Legislature's spending plan for the fiscal year starting July 1. 

GOP Sen. Richard Cash, arguably the Legislature's most outspoken abortion foe, wanted his so-called "trigger bill," which would automatically outlaw abortion in South Carolina if the justices overturn Roe v. Wade, to be added to the June special sessions. But it failed on a voice vote, meaning there was no roll call.

Last year, McMaster signed a law outlawing abortion once an ultrasound detects a fetal heartbeat, which can be as early as six weeks into a pregnancy. Opponents note that's before many women even know they're pregnant. The ban gives exceptions for pregnancies that result from rape or incest, or if the mother's life is in jeopardy. But it was immediately challenged and blocked from taking effect. 

That block would be removed if the U.S. Supreme Court overturns Roe v. Wade. 

Follow Seanna Adcox on Twitter at @seannaadcox_pc.