South Carolina Death Penalty for Abortion: Charges and Exceptions

No one in South Carolina can currently be sentenced to death for an abortion. A pending bill, H. 3537, would change that by redefining abortion as murder under state homicide law, but the South Carolina death penalty for abortion exists only as a proposal: the bill sits in the House, has never received a committee or floor vote, and an identical version filed in the previous session died in committee. If it ever passed, the mechanics of the state’s existing capital murder statute would make every abortion theoretically death-eligible.

What the Bill Would Do

H. 3537, the South Carolina Prenatal Equal Protection Act, was introduced in the state House on January 14, 2025 by Representatives Harris, Magnuson, Chumley, Burns, Long, Beach, Huff, Rankin, Sanders, Frank, and Lastinger.¹ It does not create a new crime called “abortion homicide.” Instead, it adds a definition to the state’s criminal code that treats “an unborn child at every stage of development from fertilization until birth” as a “person,” and defines fertilization as the fusion of a human sperm cell and a human egg.

That single definitional change is the whole engine. South Carolina already defines murder as the killing of any person with malice aforethought.² Expand who counts as a person back to the moment of fertilization, and the existing murder statute now covers abortion. The bill’s findings describe the purpose as abolishing abortion “as a legal act or as a crime separate and distinct from equivalent acts committed against a person who has been born.”³

How a Death Sentence Would Attach

A murder conviction in South Carolina carries either death or a mandatory minimum of thirty years to life.⁴ For prosecutors to pursue capital punishment, they must prove at least one statutory aggravating circumstance to a jury beyond a reasonable doubt during a separate sentencing phase.

One of the listed aggravators is the murder of a child eleven years of age or under. If an unborn child counts as a person from fertilization, then every abortion involves a victim far younger than eleven, and that aggravator applies in every case. Whether to actually seek the death penalty in a given prosecution would still be a decision for the local solicitor, but the statutory door would be open every time.

Who Could Be Charged

The bill reaches past the physician. Because it folds abortion into the existing homicide code, the usual rules on parties to a crime apply: clinic staff, people who arrange or fund the procedure, and others who help carry it out could all face charges.

The sharpest break from current law involves the pregnant woman herself. Under South Carolina’s existing abortion statute, a woman who obtains an abortion cannot be prosecuted even if the abortion was illegal.⁵ H. 3537 removes that protection. It gives the pregnant person a single affirmative defense: proof that she was compelled to undergo the procedure by the threat of imminent death or great bodily injury.¹ A woman who voluntarily seeks an abortion would have no statutory defense and could be charged with murder on equal footing with the provider.

The Exceptions in the Bill

The bill carves out three situations where homicide charges would not apply:

A physician performing a procedure to save the mother’s life, provided the physician takes reasonable steps to also preserve the life of the unborn child.
A spontaneous miscarriage, defined as “the natural or accidental termination of pregnancy and the expulsion of the unborn child.”
An unintentional error by a licensed physician, healthcare provider, or their staff.

Each exception is narrow. The life-of-the-mother carve-out depends on a doctor’s efforts to save the fetus as well, a judgment call that could be second-guessed after the fact. The duress defense for the pregnant woman requires an imminent physical threat; economic hardship, psychological pressure, or coercion short of threatened violence would not qualify. There are no exceptions for rape, incest, or fatal fetal anomalies.

How This Compares to Current Law

South Carolina already bans most abortions under the Fetal Heartbeat Act, which prohibits the procedure once cardiac activity is detected, typically around six weeks.⁵ That law includes exceptions for medical emergencies, fatal fetal anomalies, and pregnancies from rape or incest up to twelve weeks. A doctor who violates the heartbeat ban faces a felony with up to two years in prison and a $10,000 fine. The woman cannot be prosecuted at all.

H. 3537 would change four things at once:

The maximum penalty for the provider jumps from two years to a mandatory minimum of thirty years, with death on the table.
The gestational line moves from detectable cardiac activity to fertilization, which can precede any knowledge of pregnancy.
The pregnant woman loses her immunity and becomes prosecutable for murder.
The rape, incest, and fatal-anomaly exceptions disappear.

Constitutional Problems

Even if H. 3537 passed, it would face serious constitutional challenges. In Kennedy v. Louisiana (2008), the U.S. Supreme Court held that the Eighth Amendment bars the death penalty for crimes against individuals that do not result in the victim’s death, writing that capital punishment “must be limited to those offenders who commit a narrow category of the most serious crimes” where the crime results in the death of the victim.⁶

Supporters would argue Kennedy does not apply because the bill classifies abortion as a homicide, meaning the crime by definition results in death. Opponents would challenge the premise underneath that argument: whether a fertilized egg or early embryo legally qualifies as a person at all. The Supreme Court has never resolved that question. Dobbs overturned the constitutional right to abortion in 2022 but explicitly declined to address whether states can grant legal personhood from fertilization. Prosecuting a pregnant woman for murder over her own pregnancy would also draw due process and equal protection challenges.

Where the Bill Stands Now

H. 3537 is in the South Carolina House. It has eleven sponsors and has not received a committee vote or a floor vote.¹ Its predecessor, H. 3549 from the 2023–2024 session, was referred to the House Judiciary Committee and never advanced.³ No version of the Prenatal Equal Protection Act has ever reached a floor vote in either chamber of the General Assembly.

1
South Carolina Legislature. 2025-2026 Bill 3537: South Carolina Prenatal Equal Protection Act
2
South Carolina Legislature. South Carolina Code 16-3-10 – Murder Defined
3
South Carolina Legislature. South Carolina Prenatal Equal Protection Act of 2023
4
South Carolina Legislature. South Carolina Code 16-3-20 – Punishment for Murder; Separate Sentencing Proceeding When Death Penalty Sought
5
South Carolina Legislature. South Carolina Code Title 44 Chapter 41 – Fetal Heartbeat and Protection from Abortion
6
Justia. Kennedy v. Louisiana, 554 U.S. 407 (2008)