Behind the failed bill lies a deeper truth: South Carolina has already built a shadow system for criminalizing pregnancy.
We have to talk about South Carolina.
Last week, what could have become the most punitive abortion law in the U.S., SB 323, failed in the South Carolina Senate. (It was “so radical that even leading antiabortion groups … lined up to denounce it,” wrote Mother Jones‘ Nina Martin.) The bill proposed banning abortion in almost all circumstances, criminalizing people who sought abortion care, and removed any exceptions for rape, incest or fetal anomaly currently written into the state’s already strict six-week ban.
The defeat of SB 323 is a victory that was won by dedicated and fierce advocates from across the state and across the country. The bill represented a major threat to the reproductive rights and dignity of anyone with the capacity for pregnancy in South Carolina.
However, a recent arrest points to a larger problem in the Palmetto State. While South Carolina has not formally criminalized abortion, the state has been actively engaged in policing the bodies of pregnant women, and criminalizing pregnancy, for decades. (I explore this in my book, The Pregnancy Police: Conceiving Crime, Arresting Personhood.)
On Nov. 17, the eve of the most recent SB 323 hearing, a 20-year-old Rock Hill woman was charged for allegedly attempting to abort her pregnancy. After 911 was called to her home for a miscarriage, law enforcement allege that the woman admitted to taking medication to terminate her pregnancy. The infant was born alive (which is incredibly rare) and is currently in critical condition. The woman was arrested, charged with attempted murder and unlawful neglect of a child.
(Editor’s note: The only public details about this case come from South Carolina police. Karen Thompson, legal director of Pregnancy Justice, told Abortion, Every Day, “We’re not taking the headlines, or any statements by police and prosecutors, at face value here.”)
Anyone tracking SB 323 may wonder how this is legally possible. Under current South Carolina law, there is no legal basis to charge a pregnant person for abortion. This fact is literally a current event. The world watched as South Carolina considered its new abortion ban, which at various stages in the legislative process would have carried penalties of the death penalty or 30 years in prison. Yet, this legal reality and public scrutiny were not enough to prevent the most recent arrest—an arrest for something that the state legislature literally just declined to criminalize.
This is hardly the first time that South Carolina has pursued pregnancy-related charges. Indeed, South Carolina was one of the first states in the country to systematically prosecute people who tested positive for drugs when they attempted to receive healthcare during pregnancy or at the time of birth, almost exclusively arresting Black women. Even before the U.S. Supreme Court overturned Roe v. Wade in 2022, hundreds of women in South Carolina faced charges for their actions or inactions during pregnancy.
- In 2004, a woman in South Carolina was arrested and charged after she self-managed an abortion in her home, using pills that she got from her sister in Mexico. A migrant farm worker making far less than minimum wage, she would not be able to save up the money she needed for an abortion at a clinic. She was held in the county jail months, on $10,000 bond, before even being allowed to speak to an attorney—a blatant violation of her due process rights. Apparently, the solicitor in her case initially sought homicide charges against her, and had wanted to seek the death penalty in her case.
- In 2006, a woman in South Carolina was arrested after she went into labor early and had a stillbirth. Law enforcement alleged that, because she had not received prenatal care, that she “did intentionally deny appropriate care and nourishment of the infant.” This, in a state where about 17 percent of pregnant people receive inadequate prenatal care, and where 13 percent of counties are considered “maternity care deserts.”
- In 2009, a South Carolina woman was arrested after she tried to end her life by throwing herself from a fifth story window during a mental health crisis. She survived but lost her pregnancy, and after months in the hospital, was arrested for the involuntary manslaughter of her own pregnancy.
- In June 2025, a woman in Florence County was arrested and charged with desecration of human remains, a felony punishable by up to 10 years in prison, after she had a stillbirth and put her baby’s remains in a dumpster.
… South Carolina prosecutors are taking the law into their own hands—arresting vulnerable and marginalized pregnant people for things that are not crimes.
These cases are not anomalies. Since the 1980s, nearly 300 people have been charged with crimes against their own pregnancies in South Carolina, 180 of them just since 2005. In the post-Dobbs era, South Carolina is the third most prolific punisher of pregnant women. You might say punishing pregnant people is a Palmetto State tradition.
These arrests represent a major breakdown in the already fraught criminal legal system. Arrests related to positive drug tests during pregnancy were made before using drugs during pregnancy was even a crime. This is not how criminal law is supposed to work.
In order to be prosecutable, crimes are supposed to be clearly defined in law, so that people know what kind of conduct is considered criminal. If a state wants to apply homicide charges to abortion cases, they are supposed to pass a law criminalizing abortion. Instead, South Carolina prosecutors are taking the law into their own hands—arresting vulnerable and marginalized pregnant people for things that are not crimes.
In interviews conducted for my book, prosecutors explained that they encouraged guilty pleas in these cases to avoid legal appeals. Disturbingly, sometimes attempts to fight the charges result in brutal court rulings that essentially make criminal law by judicial decree. If South Carolina prosecutors keep this up, they might never need to pass a law like SB 323. Each prosecution is a potential test case that could criminalize abortion throughout the state.
South Carolina’s infant and maternal mortality rates are among the worst in the U.S. OB-GYNs are leaving the state because these draconian abortion bans do not align with the ethical provision of medical care. Rural hospital closures leave pregnant people even more vulnerable, without access to pregnancy related medical care. The prosecutorial “hold my beer” approach to criminalizing abortion shows us not only just broken the criminal legal system is, but also, just how little regard they have for the humanity of people with the capacity for pregnancy.
