By Charlotte Kahan

April 15, 2025

Abortion jurisprudence in America has changed dramatically over the last fifty years. In the landmark 1973 decision Roe v. Wade, the Supreme Court of the United States recognized a constitutional right to abortion implicit in a fundamental right to privacy.¹ Nearly two decades later, in Planned Parenthood v. Casey, the Court weakened Roe’s protections but otherwise maintained its core holding.² But in 2022, after a decades-long campaign by pro-life activists, who were ultimately aided by President Trump’s appointment of three conservative justices, the Supreme Court completely dismantled its abortion precedents in Dobbs v. Jackson Women’s Health Organization.³ Pro-life conservatives celebrated Dobbs, which eviscerated the constitutional right to abortion in the United States, as a long-awaited victory, while pro-choice liberals viewed the decision as a harbinger of fear, confusion, and chaos. What had once seemed implausible—the overturning of a constitutional right, enshrined by what was seen by many legal scholars as a “super precedent”—became a reality.⁴ Now, as many states pass increasingly draconian anti-abortion statutes and onlookers worry that the second Trump administration may prove sympathetic to a national abortion ban, some state legislators are pushing the envelope even further by proposing that abortion be a capital crime.

This trend is not new: even before Dobbs, some state officials had introduced bills to punish abortion as homicide. Ohio House Bill 565, for example, was proposed in 2018—a full four years before the Supreme Court overturned Roe—and would have defined abortion as murder, punishable by death.⁵ Legislators in Texas have similarly tried, on numerous occasions, to pass statutes making abortion a capital crime.⁶ If those bills were seen as legal non-starters under Roe, the Supreme Court appears to have reinvigorated them with Dobbs.

One of the most recent proposals is South Carolina’s Prenatal Equal Protection Act, introduced in the South Carolina Assembly in 2023. This Article uses that bill as a case study to examine how states might impose the death penalty as punishment for abortion and what constitutional limitations might stand in the way of their enactment. Specifically, the Article argues that the Prenatal Equal Protection Act (and other statutes like it) would run afoul of the Eighth Amendment’s prohibition on cruel and unusual punishment, as applied to the states via Fourteenth Amendment incorporation. Using the analytical framework of Kennedy v. Louisiana,⁷ which held that the death penalty for child rape violated the Eighth Amendment, this Article finds that the Supreme Court’s reasons for cabining the scope of the death penalty apply even more forcefully in the abortion context.

Outside the scope of this Article are the innumerable prudential and philosophical considerations that counsel against enacting such statutes—including the exacerbation of preexisting race and class disparities in maternal healthcare and the criminal legal system, the transformation of the medical profession, the inherent contradiction of “protecting life” by extinguishing it, and many others.⁸ The Article will instead focus squarely on the constitutional weaknesses of the Prenatal Equal Protection Act and similar statutes that would render abortion a capital crime.⁹

I. Overview of Eighth Amendment Law and Death Penalty Jurisprudence

The Eighth Amendment to the U.S. Constitution prohibits the infliction of cruel and unusual punishments. Modern jurisprudence has moved away from focusing merely on whether a particular method of punishment (for example, the electric chair) is unconstitutionally harsh, instead recognizing that conceptualizations of “cruel and unusual” evolve over time.¹⁰ As early as 1910, a Supreme Court majority held that the Eighth Amendment may “acquire meaning as public opinion becomes enlightened by a humane justice.”¹¹ A plurality subsequently declared in 1958 that the Eighth Amendment is “not static” and “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”¹²

In a sparse 1972 per curiam opinion, the Court in Furman v. Georgia held three state death penalty statutes unconstitutional, finding incurable issues of racial discrimination and arbitrariness and effectively imposing a moratorium on all government-ordered executions.¹³ But just four years later, in Gregg v. Georgia, the Court clarified that capital punishment can be constitutional as long as proper substantive criteria and procedural safeguards are built into state criminal statutes.¹⁴

In the wake of Furman and Gregg, states began revising their laws to ensure that “every capital proceeding…involve[d] individualized considerations of the defendant and the crime.”¹⁵ To impose a death sentence, a jury must find, beyond a reasonable doubt, that at least one statutory “aggravating factor” applies to the case before them.¹⁶ For example, in South Carolina, aggravating factors include, but are not limited to, committing murder for pecuniary gain and committing murder of a child eleven years or younger.¹⁷ The purpose of these and other statutory aggravators is to “furnish principled guidance for the choice between death and a lesser penalty.”¹⁸

Even as states amended their statutes to comport with the demands of the Constitution, the Court gradually chipped away at the scope of death-eligible offenses from the 1970s to the 2000s.¹⁹ The Court was guided by the principle that the excessiveness of a punishment was to be “judged not by the standards that prevailed . . . when the Bill of Rights was adopted, but rather by those that currently prevail.”²⁰ By 2008, in Kennedy v. Louisiana, the Court held that the imposition of the death penalty for any non-homicide crime constituted a violation of the Eighth Amendment.²¹

The petitioner in Kennedy had been convicted of aggravated rape of his eight-year-old stepdaughter and was sentenced to death, pursuant to Louisiana state law. In evaluating the constitutionality of that punishment, the Supreme Court used a two-pronged analysis. The first prong required an understanding of contemporary standards and attitudes towards punishment for the crime of child rape. The Court looked to state statutes, statistics, and other indicators to conclude that there is no modern-day societal consensus that would justify the imposition of capital punishment for the crime of child rape. However, noting that “[c]onsensus is not dispositive,” Justice Kennedy explained that the second piece of the inquiry involves the Supreme Court’s own precedent as well as its interpretation of the text, history, meaning, and purpose of the Eighth Amendment.²² This analytical framework as established in Kennedy provides a way to assess the constitutionality of South Carolina’s Prenatal Equal Protection Act.

II. Case Study: The South Carolina Prenatal Equal Protection Act

In 2023, South Carolina Representative Rob Harris, a staunch conservative and registered nurse who pledged to “fight to completely end baby murder,”²³ introduced the Prenatal Equal Protection Act to the state legislature. The bill initially attracted 24 co-sponsors.²⁴

Acknowledging the “sanctity of innocent human life, created in the image of God, which should be equally protected from fertilization to natural death,” the Act’s stated purpose is to “afford equal protection of the laws to all preborn children from the moment of fertilization” and to make abortion the same, in terms of criminal liability, as “equivalent acts committed against a person who has been born.”²⁵

The Act would amend the South Carolina Code to add abortion to the state’s existing homicide statute. Abortion would therefore be punishable by either of the state’s two penalties for murder: mandatory imprisonment of 30 years to life, or death.²⁶ A woman who receives an abortion “because she was compelled to do so by the threat of imminent death or great bodily injury” could assert such circumstances as a defense to prosecution.²⁷ Finally, the bill would create a carveout from prosecution in specific cases where a licensed physician provides care “to avert the death of a pregnant woman that results in the accidental or unintentional injury or death of her unborn child when all reasonable alternatives to save the life of the unborn child were attempted or none were available.”²⁸

Critically, the Act defines personhood as existing from the moment of fertilization. Since, by that definition, a fetus is a person, and abortion is the killing of the fetus, it follows that abortion is murder—a homicide with “malice aforethought.”²⁹ In using fertilization as the relevant marker of personhood, rather than heartbeat or viability, this bill is more draconian than other states’ abortion statutes—many of which are already highly restrictive. North Carolina, for example, bans abortions after 12 weeks of pregnancy; Florida, Iowa, and Georgia ban abortions after six weeks.³⁰ Importantly, those state statutes apply to abortion providers, rather than criminalizing the pregnant person for seeking the procedure. Nevada is now the only state in the country that explicitly criminalizes women for “self-managing” an abortion (most frequently by medication), and it only does so after 24 weeks of pregnancy.³¹

Several Republican state legislators pulled their support for the South Carolina bill after it began attracting negative press coverage, and the governor called the proposal “lunacy.”³² The Act ultimately died in committee. One state legislator, Representative David Vaughan, claimed that he had “signed on that bill in [e]rror.”³³ Another, Representative Brandon Guffey, said, “I read through [the bill], but I did not click on the code that it linked to stating that a woman should get the death penalty,” and he withdrew his support after learning of the Act’s implications.³⁴

Although the 2023 version of the Prenatal Equal Protection Act failed, there is good reason to assess whether it would have withstood constitutional scrutiny had it passed. Indeed, Representative Harris has since filed an updated version of the bill, with the same name,³⁵ giving the South Carolina legislature an opportunity to reevaluate the policy in the 2025-26 term.

III. Analysis: Applying the Eighth Amendment to the South Carolina Bill

South Carolina’s Prenatal Equal Protection Act runs afoul of the principles established in the Supreme Court’s death penalty cases, particularly Kennedy v. Louisiana. Taken together, the following points demonstrate that the Act would violate the Eighth Amendment to the Constitution: First, capital abortion statutes are ahistorical, and no discernable societal consensus exists in favor of such statutes. Second, the Act is incompatible with evolving standards of decency as conceptualized in Kennedy. Third, the Act would so dramatically and arbitrarily expand the scope of death-eligible crimes as to flout the Supreme Court’s admonition that capital statutes must be as narrowly tailored as possible. Finally, the Act fails to advance the classic purposes of capital punishment—retribution and deterrence—rendering it effectively useless to society despite its cruelty. Each of those points will be addressed in turn.

A. History and Consensus

Just as the Court in Kennedy began its analysis with a review of the history of the death penalty for rape, it is crucial to note at the outset that no U.S. state currently has a statute making abortion punishable by death.

Historically, pro-life laws typically targeted abortion providers, not recipients.³⁶ For example, the nation’s first anti-abortion statute, passed in Connecticut in 1821, “did not make the woman herself guilty of anything, but rather the person” who administered the abortifacient—in other words, these early statutes were “aimed primarily at apothecaries and physicians.”³⁷ The prevailing 19^th-century attitude was that abortion was a practice “usually resorted to by women who deserved pity and protection rather than criminal liability.”³⁸ By the middle of the century, abortion had “entered the mainstream of American life” and became “highly visible, much more frequently practiced, and quite common as a means of family limitation among white, Protestant, native-born wives of middle- and upper-class standing.”³⁹

Public perception of abortion would ultimately change: the second half of the 19^th century and first half of the 20^th saw a dramatic shift towards anti-abortion policies and statutes, many of which revoked the traditional common-law practice of immunity for the pregnant woman.⁴⁰ Nevertheless, there is no evidence that an American woman has ever been sentenced to death as punishment for aborting her pregnancy,⁴¹ and even states that outlawed abortion in the early 20^th century rarely pressed criminal charges against women who obtained the procedure.⁴² And, of course, in 1973, the Supreme Court held in Roe v. Wade that there was, in fact, a constitutional right to abortion, dramatically changing the landscape of state abortion statutes.

While some women have faced criminal punishment in recent years for inducing their own abortions in violation of state law, those cases are relatively rare.⁴³ Even the law at the center of the Dobbs litigation, Mississippi’s Gestational Age Act, adhered to the typical historical practice of punishing doctors, not pregnant women: “a person shall not intentionally or knowingly perform . . . an abortion of an unborn human being if the probable gestational age” of the fetus is greater than fifteen weeks.⁴⁴

The foregoing historical analysis bears on two important questions. First, in accordance with the first prong of the Kennedy test: has there ever been a historical consensus in favor of making abortion a capital crime in the United States? And second, per the second prong of the Kennedy test, which requires the Supreme Court to undertake its own independent constitutional analysis: would a capital abortion statute, if passed today, be consistent with general historical practice? The answer to both questions is emphatically no, strongly suggesting that the Prenatal Equal Protection Act, insofar as it subjects abortion recipients to capital punishment, violates the Eighth Amendment.

B. Incompatibility with Evolving Standards of Decency

The Court emphasized in Kennedy v. Louisiana that “the Eighth Amendment is defined by the ‘evolving standards of decency that mark the progress of a maturing society’”—a principle which “requires that use of the death penalty be restrained.”⁴⁵ The Court is guided by “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions,”⁴⁶ as well as history of the criminal punishment at issue, international opinion, and sentencing decisions that juries have made in relevant cases.⁴⁷

First, reproductive choice is inextricably linked to women’s autonomy, freedom, and participation in society. As Justice Breyer wrote in his Dobbs dissent:

The ability of women to participate equally in the life of the Nation—in all its economic, social, political, and legal aspects—has been facilitated by their ability to control their reproductive lives. Without the ability to decide whether and when to have children, women could not—in the way men took for granted—determine how they would live their lives, and how they would contribute to the society around them.⁴⁸

Even a Supreme Court that does not believe in the importance of abortion to the independence and dignity of women—as appears to be the case for the current Court—can and should be able to recognize that imposing the death penalty for a crime of abortion would cross a very dangerous legal and social line. The enactment of capital abortion statutes would subject women across the country—not just those who become ensnared in the criminal legal system—to a level of indignity, humiliation, and barbarity unparalleled in the modern world. Such statutes signal that the state regards those who have the capacity to become pregnant as second-class citizens, because their lives are inherently subordinate to those of the unborn.

Second, the application of capital punishment to abortion recipients would represent a profound departure from evolving standards of decency and progress. In Enmund v. Florida⁴⁹ and Coker v. Georgia,⁵⁰ the Supreme Court recognized global comparisons as a means by which to gauge contemporary standards of decency. With respect to abortion, the international trends are clear: over the past three decades, more than sixty nations and territories, from Albania to Uzbekistan, have liberalized their abortion laws, while just four countries—the United States, Nicaragua, El Salvador, and Poland—have rolled back the legality of abortion.⁵¹ Access to safe abortion is recognized as a human right by the United Nations Human Rights Committee, the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Commission on Human and People’s Rights.⁵² Public opinion within the United States also suggests that capital abortion statutes would be a highly anomalous development. An estimated sixty-three percent of Americans believe that abortion should be legal in all or most cases—a percentage that has stayed relatively steady over the past thirty years.⁵³

Third, the Prenatal Equal Protection Act and similar statutes would result in an unprecedented legal and cultural shift. As the Court observed in Kennedy, “Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”⁵⁴ The majority in that case was particularly concerned about the fact that “the death penalty for this crime [of child rape] has been most infrequent.”⁵⁵ Specifically, the fact that “no one has been executed in more than 40 years [for the crime of child rape] would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty.”⁵⁶ That reasoning is extended to its logical extreme in the case of abortion—a procedure which has only sporadically been criminalized in American history and appears to have never been a capital offense.⁵⁷

The fact that more states are proposing bills like South Carolina’s Prenatal Equal Protection Act⁵⁸ might suggest that there is a movement of “consistent change” in the direction of imposing capital punishment for abortion. Indeed, in the Kennedy litigation, the state of Louisiana advocated to save its capital child rape statute in part by pointing to several pending bills in other states that would impose the death penalty for the same offense. The state’s argument was that this apparent trend in the direction of capital punishment for child rape could “counterbalance an otherwise weak demonstration of consensus.”⁵⁹

But the Kennedy Court was not convinced, emphasizing that “[i]t is not our practice, nor is it sound, to find contemporary norms based upon state legislation that has been proposed but not yet enacted.”⁶⁰ That reasoning applies with equal if not greater force in the present context. If proposed bills were all that was needed to indicate a consistent change in the national ethos, a vocal but extremist minority of state lawmakers could flood their respective legislatures with bills that never had realistic chances of passage. Given that no state has yet enacted a statute that specifically criminalizes abortion as capital homicide, it would be illogical to interpret mere proposals in Texas, South Carolina, and other states as a harbinger of cultural change.

C. Overbroad Application of Capital Punishment

In Roper v. Simmons, Justice Kennedy explained that an interpretation of the Eighth Amendment’s prohibition of cruel and unusual punishment must consider the Amendment’s purpose within the constitutional design, in addition to its text, history, and tradition.⁶¹

As applied to death penalty jurisprudence, the core purpose of the Eighth Amendment is to determine “those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution.”⁶² Applying the death penalty to offenders who are not the “worst of the worst” is, per se, cruel and unusual.

In subjecting abortion recipients to potential capital liability, the South Carolina bill runs afoul of the Eighth Amendment. First, it would be absurd to deem a person who receives an abortion as belonging to the class of offenders “most deserving of execution” given that abortion was a constitutional right until a few years ago. Even today, millions of people continue to view abortion as a form of basic healthcare and a means of exercising a person’s bodily autonomy.⁶³ This widespread and deeply rooted understanding of abortion is fundamentally incompatible with the notion that women who receive abortions are among society’s worst criminals.

In establishing that capital punishment for child rape violated the Eighth Amendment, Justice Kennedy found “significant the number of executions that would be allowed” if child rape were a capital offense.⁶⁴ He noted that, nationwide, there were approximately 5,700 incidents of child rape reported in 2005, compared to about 3,400 incidents of intentional murder.⁶⁵ Permitting a death sentence for all individuals convicted of child rape “could not be reconciled with our evolving standards of decency and the necessity to constrain the use of the death penalty.”⁶⁶ The numbers are even more stark in the abortion context: the annual number of abortions in the U.S. ranges from over 500,000 to nearly one million.⁶⁷ In South Carolina alone, despite increasingly restrictive abortion laws, over 8,000 abortions were reported in 2023.⁶⁸

South Carolina might contend that some women who receive abortions—perhaps those who are particularly far along in their pregnancy, or those who use certain abortifacients—are more blameworthy than others. But the Prenatal Equal Protection Act can make no principled distinction between different abortion “offenders,” since existing South Carolina law imposes a blanket statutory aggravator on any person who commits a murder of a child under the age of eleven. In other words, since the Act grants personhood to a fertilized human ovum, the child-victim statutory aggravator would, by definition, apply to every abortion. And when a jury finds that at least one statutory aggravator applies to an offender, the jury can impose a death sentence.⁶⁹

The existence of a “de facto” aggravator—that is, one that applies in every case—“defeats the constitutional purpose of aggravators” and therefore renders the capital punishment scheme unlawful, per Furman and its progeny, for failing to make meaningful distinctions in culpability among offenders.⁷⁰ Imposing blanket capital liability for abortion recipients flouts the Supreme Court’s admonition that a capital punishment scheme “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.”⁷¹

The state could not cure the constitutional defects of the Act by simply revising the applicable statutory aggravators. For example, if legislators were to replace the existing child-victim aggravator with one that would apply to women who receive abortions after 12 weeks (under the theory that later-term abortions are more culpable), the very purpose of the Act would be undermined. The text of the bill purports to afford equal protection to “all preborn children,” suggesting that the state intends to treat all abortions, regardless of the stage of pregnancy, as equally culpable—which inherently conflicts with Eighth Amendment death penalty precedent.⁷²

D. Incompatibility With the Purposes of Capital Punishment

The Court in Gregg and Kennedy explained that capital punishment is excessive when it does not fulfill the two purposes served by the death penalty: retribution and deterrence.⁷³ Retribution reflects a societal interest “in seeing that the offender is repaid for the hurt he caused.”⁷⁴ But the retributive impulse to punish women for obtaining abortions is a dangerous one that the Supreme Court should summarily reject. Justice Kennedy’s warning nearly two decades ago rings just as true today: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”⁷⁵ There is undeniable brutality in the state-sanctioned killing of a woman for choosing to abort her pregnancy—above and beyond the inherent contradiction between the state’s purported aim of preserving fetal life and its chosen punishment: ending the life of another.⁷⁶

In Atkins v. Virginia, one factor that counseled in favor of abolishing the death penalty for intellectually disabled defendants was the “special risk of wrongful execution” due to those defendants’ diminished ability to make persuasive mitigation arguments.⁷⁷ The Kennedy Court recognized a similarly “special risk” in certain child rape cases, where a defendant’s guilt or innocence appears to hinge on the potentially unreliable testimony of a child victim.⁷⁸ The special risk of wrongful execution in the abortion context is at least as weighty as in Atkins and Kennedy. For example, there are innumerable evidentiary challenges associated with discerning whether a miscarriage or stillbirth was intentionally induced. Across the country, women who experience miscarriage or stillbirth have been prosecuted for abuse of a corpse, concealing a death, manslaughter, “feticide,” and other crimes.⁷⁹ The frequency of miscarriages (approximately one million per year) and stillbirths (approximately 20,000 per year)⁸⁰ in the U.S. suggests that there are ample opportunities for unjust, and perhaps also discriminatory, prosecution. The societal goal of retribution—to the extent such a goal exists in the context of punishing abortion—must be weighed against the special risks of unreliable, vague, or inconclusive evidence.

The deterrence rationale for punishing abortions by death is even shakier. First, studies suggest that women continue to seek abortions even when the procedure has been criminalized. The main effect of restrictive abortion laws, then, is not fewer abortions, but rather more abortions that are unsafe and unregulated.⁸¹

Second, criminal laws have real deterrence value only when individuals believe that such laws will be enforced. State statutes that treat abortions as capital homicide are likely to be inconsistently applied, especially without reliable reporting: the decision to terminate a pregnancy is a highly private one, and it is unlikely that those privy to that decision—a woman’s loved ones, or her doctor, for example—would report the abortion to the authorities.⁸² Further, with more draconian potential punishments available, third parties may be less inclined to report to the state a person who receives an abortion. Women seeking to terminate their pregnancies will simply be pushed further into the shadows.⁸³

IV. Conclusion

Does the Prenatal Equal Protection Act violate the Eighth Amendment to the Constitution? In some respects, the answer is an easy yes. Punishing abortion with the death penalty would amount to an unprecedented and barbaric crackdown on people who avail themselves of a medical procedure that, until 2022, was constitutionally protected. Despite this country’s checkered history on abortion and women’s rights in general, capital abortion statutes are completely ahistorical. And the inability of the Prenatal Equal Protection Act to comply with the Supreme Court’s basic death penalty requirements—that the punishment be narrowly applied to the worst of all criminal offenders, which can be achieved by use of statutory aggravators; that the statute comport with the basic purposes of punishment; and that procedural safeguards exist to protect against abuse—renders the Act unfixable.

On the other hand, abortion raises profoundly difficult questions implicating philosophy and science, morals and ethics, law and medicine. While the Supreme Court has held that no non-homicide crime may be punished with the death penalty, the key question is whether abortion is homicide—the intentional taking of life. Is abortion a “homicide” if South Carolina defines it as such? At what point does a fetus become a person entitled to equal protection, due process, and other fundamental constitutional rights? Should the Supreme Court be trusted to correctly articulate the national zeitgeist on abortion and capital punishment? The fact that these and related questions remain unanswered provides strong reason to suspect that capital abortion statutes would not withstand constitutional scrutiny. The stakes are too high to tolerate guesswork.

This Article has focused on the constitutionality of the death penalty as punishment for abortion. It has not addressed other potential criminal punishments for abortion-related crimes—ranging from relatively minor misdemeanor sentences to lengthy periods of incarceration. While the Court has been willing to entertain constitutional challenges to the death penalty, since “a sentence of death differs in kind from any sentence of imprisonment, no matter how long,” the justices have otherwise demonstrated a “reluctance to review legislatively mandated terms of imprisonment.”⁸⁴ In other words, as the Court recognized in Rummel v. Estelle, “[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.”⁸⁵ It is not a hypothetical concern that women could be incarcerated for abortions: a South Carolina woman was arrested in 2023 after she allegedly took an abortion pill to terminate her 25-week pregnancy.⁸⁶ The woman faced up to two years in prison for the state crime of self-administering an abortion, though prosecutors ultimately dropped the charges. Perhaps state officials, at least at present, generally lack the political will to imprison women for aborting their pregnancies. Nevertheless, precedent suggests that the Court would not be amenable to Eighth Amendment challenges to incarceratory sentences.

The likelihood of capital abortion statutes passing any state legislature in modern-day America may seem remote. It is revealing, for example, that the initial swell of support for the South Carolina bill waned as press coverage intensified and legislators apparently realized exactly what the Act would entail. However, some state prosecutors have strategically interpreted existing criminal statutes to authorize them to investigate self-managed abortions as potential homicides,⁸⁷ and explicit capital abortion statutes have been proposed frequently enough to merit serious attention. In light of Supreme Court precedent, contemporary attitudes about the death penalty, historical trends, and other considerations, this Article has demonstrated that the Prenatal Equal Protection Act would fall far short of the demands of the Eighth Amendment.

Charlotte Kahan, J.D. Class of 2025, N.Y.U. School of Law.

Suggested Citation: Charlotte Kahan, Death for Death: A Constitutional Analysis of South Carolina’s Prenatal Equal Protection Act, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2025).

1
Roe v. Wade, 410 U.S. 113 (1973). Though the right to abortion was not absolute, the Court devised a trimester framework to conceptualize the balance of interests at stake: in the first trimester, a woman had an absolute right to abortion; in the second, states could pass regulations that reasonably related to the protection of maternal health; and in the third (approximately after the fetus reached “viability,” meaning that the fetus could survive outside the womb), states could fully prohibit abortion except when the life and health of the mother were at stake. Id. at 163–165.
2
Planned Parenthood v. Casey, 505 U.S. 833 (1992). In Casey, the Court did away with the trimester framework and pronounced that prior to fetal viability, states could not outright ban abortion, but they could regulate the procedure as long as the regulation did not impose an “undue burden” on the abortion right. Id. at 872–876.
3
Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
4
See, e.g., Marcia Coyle, Hunting for ‘Super Precedents’ in U.S. Supreme Court Confirmations, Nat’l Const. Ctr (Oct. 20, 2020), https://constitutioncenter.org/blog/hunting-for-super-precedents-in-u.s-supreme-court-confirmations. Super precedents are “constitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently supported over a significant period of time.” Michael J. Gerhardt, Super Precedent, 26 Minn. L. Rev. 1204, 1205 (2006).
5
H.B. 565, 132d Gen. Assemb., Reg. Sess. (Ohio 2018); see Erica Rebussini, Intersecting Trends in Abortion and Capital Punishment Policy, 22 Rich. Pub. Int. L. Rev. 423, 427 (2019).
6
See H.B. 948, 85th Leg., Reg. Sess. (Tex. 2017); H.B. 896, 86th Leg., Reg. Sess. (Tex. 2019). See also Owen Woo & Lauren Yamaguchi, Pro Life, Pro Death: The Convergence of Abortion Restrictions and the Death Penalty in Texas, 15 Ne. U.L. Rev. 641, 685 (2023).
7
Kennedy v. Louisiana, 554 U.S. 407 (2008).
8
See, e.g., Woo & Yamaguchi, supra note 6, at 688–91.
9
Note: this Article reproduces the gendered language used in state statutes and other contexts (e.g., “woman,” “maternal,” and “mother”) but recognizes that not all people capable of pregnancy identify with these terms.
10
See, e.g., Estelle v. Gamble, 429 U.S. 97, 102 (1976) (“Our more recent cases, however, have held that the [Eighth] Amendment proscribes more than physically barbarous punishments.”)
11
Weems v. United States, 217 U.S. 349, 378 (1910).
12
Trop v. Dulles, 356 U.S. 86, 101 (1958).
13
Furman v. Georgia, 408 U.S. 238 (1972).
14
Gregg v. Georgia, 428 U.S. 153 (1976).
15
Melanie Kalmanson, Death After Dobbs: Addressing the Viability of Capital Punishment for Abortion, 29 Wm. & Mary J. Race, Gender & Soc. Just. 545, 586 (2023).
16
Id.
17
S.C. Code § 16-3-20.
18
Richmond v. Lewis, 506 U.S. 40 (1992).
19
Coker v. Georgia, 433 U.S. 584 (1977) (no death penalty for rape); Atkins v. Virginia, 536 U.S. 304 (2002) (no death penalty for convicts with mental disability); Roper v. Simmons, 543 U.S. 551 (2005) (no death penalty for juvenile convicts).
20
Atkins, 536 U.S. at 311 (emphasis added). However, some observers have warned that this Eighth Amendment precedent is “at risk” in light of the Court’s recent emphasis on “original meaning, history, and tradition.” See, e.g., Alexandra L. Klein, Kennedy v. Louisiana and the Future of the Eighth Amendment, 52 Pepperdine L. Rev. 293, 298 (2025).
21
Kennedy, 554 U.S. at 407.
22
Id. at 421.
23
About Rob, Harris for House (last visited April 2, 2024), https://www.harrisforsc.com/about [https://perma.cc/R9F3-8QMY].
24
Zoë Richards, 9 Republicans pull support from South Carolina bill allowing the death penalty for abortion, NBC News (March 18, 2023), https://www.nbcnews.com/politics/politics-news/9-republicans-south-carolina-abortion-death-penalty-bill-rcna75383 [https://perma.cc/QG8U-E8RT]
25
H.B. 3549, 125th Assemb., 1st Reg. Sess. (S.C. 2023).
26
S.C. Code § 16-3-20 (“A person who is convicted of or pleads guilty to murder must be punished by death, or by a mandatory minimum term of imprisonment for thirty years to life.”).
27
S.C. H.B. 3549.
28
Id.
29
S.C. Code § 16-3-10 (“‘Murder’ is the killing of any person with malice aforethought, either express or implied.”).
30
See After Roe Fell: Abortion Laws by State, Center for Reproductive Rights (accessed Dec. 1, 2024), https://reproductiverights.org/maps/abortion-laws-by-state/ [https://perma.cc/8JR6-V845]. (Note: many states also include exceptions to their abortion bans for medical emergencies, rape, or incest.)
31
Amy Friedrich-Karnik et al., Medication Abortion Within and Outside the Formal US Health Care System: What You Need to Know, Guttmacher Institute (Feb. 2024), https://www.guttmacher.org/2024/02/medication-abortion-within-and-outside-formal-us-health-care-system-what-you-need-know [https://perma.cc/ZEF8-P5FY].
32
Amanda Shaw, Abortion death penalty bill is ‘lunacy’, SC Governor says, Fox Carolina (March 23, 2023), https://www.foxcarolina.com/2023/03/23/abortion-death-penalty-bill-is-lunacy-sc-governor-says/ [https://perma.cc/VN79-QK5C].
33
Richards, supra note 24.
34
Id.
35
H.B. 3537, 126th Assemb., 1st Reg. Sess. (S.C. 2025).
36
Jean Rosenbluth, Abortion as Murder: Why Should Women Get Off? Using Scare Tactics to Preserve Choice, 66 S. Calif. L. Rev. 1237, 1245 (1993) (noting that “an overwhelming majority of the laws ever passed in this country outlawing abortion have exempted the pregnant clients from liability.”).
37
James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800-1900 (1978) at 22. Mohr also explains that “not a single one of these early abortion provisions was passed by itself. They were all contained in large revisions of the criminal codes in their jurisdictions or in omnibus ‘crimes and punishments’ bills. This is significant because it indicates that there was no substantial popular outcry for anti-abortion activity . . . . [T]he criminal status of abortion originated as a doctors’ and lawyers’ issue, not as a popular issue in any sense.” Id. at 42.
38
Id. at 44.
39
Id. at 102.
40
See generally, id. at 226-45.
41
While it is difficult to definitively rule out the possibility that the death penalty had ever been invoked for an American abortion recipient, this author has found no documented evidence of such.
42
See Rebecca Kluchin, Punishable by death—how the US anti-abortion movement ended up proposing the death penalty, BMJ 711 (2023), https://www.bmj.com/content/380/bmj.p711 [https://perma.cc/9YNQ-ATXJ].
43
See, e.g., Laura Huss, Self-Managed Abortion Is Not Illegal in Most of the Country, but Criminalization Happens Anyway, If/When/How (Aug. 9, 2022), https://ifwhenhow.org/news/self-managed-abortion-is-not-illegal-in-most-of-the-country-but-criminalization-happens-anyway [https://perma.cc/D7CV-JPCV].
44
Miss. Code Ann. § 41–41–191 (2018) at § 4(b) (emphasis added); see Dobbs, 597 U.S. at 232.
45
Kennedy, 554 U.S. at 446 (quoting Trop, 356 U.S. at 101).
46
Roper, 543 U.S. at 563.
47
Enmund v. Florida, 458 U.S. 782, 788 (1982).
48
Dobbs, 597 U.S. at 381 (Breyer, J., dissenting) (internal references omitted).
49
Enmund, 458 U.S. at 788, n.22.
50
Coker, 433 U.S. at 596 n.10.
51
The World’s Abortion Laws, Center for Reproductive Rights (accessed Nov. 12, 2024), https://reproductiverights.org/maps/worlds-abortion-laws/.
52
Abortion Law: Global Comparisons, Council on Foreign Relations (updated March 7, 2024), https://www.cfr.org/article/abortion-law-global-comparisons [https://perma.cc/UM59-MSK3].
53
Public Opinion on Abortion, Pew Research Center (May 13, 2024), https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion/ [https://perma.cc/VYB6-U7QU].
54
Kennedy, 554 U.S. at 441.
55
Id.
56
Id. at 440-41.
57
It is difficult to determine with absolute certainty that no law in American history has ever made abortion a capital offense. Regardless, punishing abortions with the death penalty has never been common practice in the United States.
58
See, e.g., S.B. 1729, 59th Legis., 2nd Reg. Sess. (Okla. 2024) (proposing that the definition of “human being,” as used in the state homicide statute, include an unborn child); H.B. 1334, 124th Gen. Assemb., 1st Reg. Sess. (Ind. 2025) (same). Both Oklahoma and Indiana allow the death penalty. State Summaries: States with the Death Penalty, Death Penalty Info. Ctr. (last visited March 20, 2025), https://deathpenaltyinfo.org/resources/high-school/state-by-state-data/state-summaries [https://perma.cc/6YHN-P2DL].
59
Kennedy, 554 U.S. at 431.
60
Id.
61
Roper, 534 U.S. at 560–61.
62
Id. at 568 (internal quotations omitted).
63
See, e.g., Abortion Rights, Amnesty Int’l (last visited April 2, 2025), https://www.amnesty.org/en/what-we-do/sexual-and-reproductive-rights/abortion-facts [https://perma.cc/BW3B-EHT8].
64
Kennedy, 554 U.S. at 438.
65
Id. at 438–39.
66
Id. at 439.
67
Jeff Diamant, et al., What the data says about abortion in the U.S., Pew Rsch. Ctr. (March 25, 2024), https://www.pewresearch.org/short-reads/2024/03/25/what-the-data-says-about-abortion-in-the-us [https://perma.cc/4ZVY-CFYG].
68
Mia Steupert, Abortion Reporting: South Carolina (2023), Charlotte Lozier Inst. (July 29, 2024), https://lozierinstitute.org/abortion-reporting-south-carolina-2023 [https://perma.cc/5HWQ-XV64].
69
See S.C. Code § 16-3-20 (“When the State seeks the death penalty…the court shall conduct a separate sentencing proceeding. In the proceeding, if a statutory aggravating circumstance is found, the defendant must be sentenced to either death or life imprisonment. If no statutory aggravating circumstance is found, the defendant must be sentenced to either life imprisonment or a mandatory minimum term of imprisonment for thirty years to life… In the sentencing proceeding, the jury or judge shall hear additional evidence in extenuation, mitigation, or aggravation of the punishment.”).
70
See Kalmanson, supra note 15, at 591.
71
Loving v. United States, 517 U.S. 748, 755 (1996) (internal quotations and citations omitted); see also Rebussini, supra note 5, at 435.
72
S.C. H.B. 3549.
73
See Kennedy, 554 U.S. at 441. The third purpose of criminal punishment, rehabilitation, does not apply in a discussion about the death penalty, since the state, in putting an offender to death, clearly never intends to rehabilitate her.
74
Id. at 442.
75
Kennedy, 554 U.S. at 420.
76
See Rebussini, supra note 5, at 443 (“[I]t is worth noting the contradiction inherent in the concept of a bill that penalizes abortion — presumably for the purpose of protecting human life on the reasoning that unborn life is still life — but still ends in the possible penalty of death of the would-be mother.”).
77
Atkins, 536 U.S. at 320.
78
Kennedy, 554 U.S. at 443.
79
See, e.g., Ava B., When Miscarriage is a Crime, Planned Parenthood (July 29, 2019), https://www.plannedparenthoodaction.org/planned-parenthood-advocates-arizona/blog/when-miscarriage-is-a-crime [https://perma.cc/98D3-855D].
80
B.B. Thompson, et al., Placental Pathology Findings in Unexplained Pregnancy Losses, 31 Reprod. Sci. 488, 488 (2024), https://doi.org/10.1007/s43032-023-01344-3.
81
See Michaeleen Doucleff, Do restrictive abortion laws actually reduce abortions? A global map offers insights, NPR (updated June 27, 2022), https://www.npr.org/sections/goatsandsoda/2022/05/27/1099739656/do-restrictive-abortion-laws-actually-reduce-abortion-a-global-map-offers-insigh [https://perma.cc/RVT5-Y9PC].
82
Nevertheless, some institutions have encouraged male sexual partners to report women who receive abortions. The consequences are real: for example, Texas Attorney General Ken Paxton filed a lawsuit in 2024 against a New York doctor accused of illegally providing abortion pills to a Dallas woman, based in part on information provided by an unnamed “biological father.” See Caroline Kitchener, Antiabortion advocates look for men to report their partners’ abortions, Wash. Post. (Jan. 17, 2025), https://www.washingtonpost.com/investigations/2025/01/17/texas-abortion-pills-lawsuit.
83
See Kennedy, 554 U.S. at 444–46.
84
Rummel v. Estelle, 445 U.S. 263, 272-74 (1980).
85
Id. at 272.
86
Gabe Whisnant, Woman Arrested for Abortion Sees Charges Dismissed, Newsweek (Dec. 3, 2023), https://www.newsweek.com/woman-south-carolina-arrested-abortion-sees-charges-dismissed-1849086 [https://perma.cc/XE4B-GCUV].
87
Huss, supra note 43.