From: nyikos@math.scarolina.edu (Peter Nyikos)
Subject: SOUTH CAROLINA INCEST-ABORTION LAW
Summary: South Carolina law allows abortions performed on below-age incest
         victims without their consent or the consent of their parents.
Keywords: incest, consent, emancipated, abortion
Organization: USC  Department of Computer Science
Date:  8 Sep 92 16:07:45 GMT


	One bottom line to the South Carolina law on abortion is: it is
perfectly legal for an uncle who has gotten his underage niece pregnant
to bring her in to an abortionist and have an abortion done on her
without the consent of her parents and WITHOUT HER OWN CONSENT.
	I have had a copy of the law for some time, but it was only 
today that some of the key points in the law have been clarified for
me by a trial lawyer and his wife, who has served on a grand jury in the
past and has seen a number of incest cases.  
	I am, of course, extremely interested in knowing what the law
is in other states.

	In 1990, South Carolina enacted a law, Section 44-41-31,
which states that no person may perform an abortion on a minor (defined
as being under the age of 17), unless consent is obtained in accordance
with one of the following provisions:
	"(1) the attending physician or his agent or the referring
physician or his agent has secured the informed written consent,
signed and witnessed, of the pregnant minor and:
	  "(a) one parent of the minor; or
	  "(b) a legal guardian of the minor; or
	  "(c) a grandparent of the minor; or
	  "(d) any person who has been standing in loco parentis to the
minor for a period of not less than sixty days;
	"(2) the minor is emancipated and the attending physician or his 
agent has received the informed signed written consent of the minor; or
	"(3) the attending physician or his agent has obtained the
informed signed written consent of the minor and has received the order
of the court obtained by the minor pursuant to this chapter."

	This last provision refers to a judicial bypass clause which
is explained in some detail immediately following the part just quoted.
Also, it is explained what procedures a person "in loco parentis" must
follow to be able to lawfully give consent as described above.

	Definitions of "in loco parentis" and "emancipated minor" will
follow after I give the glaring loophole in this whole consent law.
The order in which the following provisions come can be very confusing,
so I will put in some cautionary notes.  The whole law seems to be
characterized by blanket statements followed by some pretty sweeping
exceptions, and exceptions to the exceptions.  I have capitalized some
portions to draw attention to them.  Bracketed statements are my own
comments.

       "Section 44-41-30. (A) Consent is required before the performance
of an abortion in every case and in the case of a minor, it must be 
obtained pursuant to the provisions of Section 44-41-31. [See above. BUT
SEE PARAGRAPH C BELOW!!!]
	"(B) In the case of a woman who is under adjudication of mental
incompetency by a court of competent jurisdiction, consent must be
obtained from her spouse or a legal guardian if she is married; if she
is not married, from one parent or a legal guardian.
	"(C) NOTWITHSTANDING THE CONSENT REQUIRED IN SUBSECTIONS (A)
AND (B) CONSENT MUST BE WAIVED IF:
	  (1) a physician determines that a medical emergency exists
involving the life of or grave physical injury to the pregnant woman; or
	  (2) THE PREGNANCY IS THE RESULT OF INCEST. [But see paragraph
(E) below.]
	"(D) In cases of incest the physician performing the abortion shall
report the alleged incest to the local county department of social services
or to a law enforcement agency in the county where the child resides or
is found.  Failure to report is a violation punishable under the child
abuse laws of this State.
	(E) Nothing in this section permits a physician to perform an
abortion without first obtaining the consent of the pregnant WOMAN if she
is CAPABLE OF GIVING CONSENT.

	FOCA interpreters please note: it is not completely clear whether
"woman" includes "minor" or "girl," although the context seems to 
indicate that it does.  The bottom line, however, is that, as my lawyer
friend and his wife assure me, CHILDREN CANNOT GIVE CONSENT as far as this
particular clause goes!  (Note the
use of the word "child" in the (D) clause above.  It refers, of course,
to the incest victim and not the "unborn child" she is carrying.)  A
minor must be above the legal age of consent, or emancipated,
for the (E) clause to apply.

The definitions as stated in the law [Section 44-41-10 SC Code]:

	"(n) `Emancipated minor' means a minor who is or has been married
or has by court order been freed from the care, custody, and control of 
her parents.

	"(o) `In loco parentis' means any person over the age of 18 who has
placed himself or herself in the position of a lawful parent by assuming
obligations which are incidental to the parental relationship and has
so served for a period of sixty days."

	There has been discussion recently as to how paragraph (D) above
has been followed, and my lawyer friend can't add anything at present to
what I "know".

	We do not know whether an abortionist has ever reported a case of
"alleged incest."  

	We do not know whether an abortionist has ever been charged, let
alone disciplined in any way, for failing to report a 
case of "alleged incest".

Peter Nyikos