Abortion providers file new lawsuit challenging S.C.’s ‘fetal heartbeat law’

Published: Sep. 14, 2023 at 6:51 PM EDT
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COLUMBIA, S.C. (WIS) - South Carolina’s restrictive ban on abortion has been hit with another legal challenge from abortion providers.

A new lawsuit was filed Thursday in Columbia by providers including Planned Parenthood, which operates clinics in Charleston and Columbia, and Greenville Women’s Clinic.

It comes just a few weeks after the South Carolina Supreme Court upheld S.474, the state’s “fetal heartbeat law,” allowing tightened restrictions on the procedure to go into effect.

Abortion providers say in this new lawsuit, they are asking the state Supreme Court to answer a narrow but essential question: When, exactly, does South Carolina ban abortion?

“Our doctors, our patients are thoroughly confused, and so we need to be able to answer their questions and serve as many patients as possible,” Vicki Ringer of Planned Parenthood South Atlantic said.

The law bans most abortions after the detection of a “fetal heartbeat,” which Republican lawmakers defined in the legislation as “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.”

The law has generally been understood to prohibit most abortions after around six weeks, typically the earliest point when cardiac activity can be detected and has been commonly referred to as a “six-week ban.”

But abortion providers argue that “cardiac activity” and the “rhythmic contractions of the fetal heart” in the legislative text could refer to two separate points in a pregnancy because most of the heart isn’t formed until nine weeks.

In a footnote in the majority opinion to uphold the ban, Justice John Kittredge wrote they were leaving this question for “another day.”

“We can’t leave it for another day,” Ringer said. “When doctors can go to jail and patients are not helped, we have to decide that now.”

Republican leaders at the State House disagree.

“The rules are really very clear,” Senate Majority Leader Shane Massey, R – Edgefield, told reporters after the court’s decision on the previous lawsuit came down on Aug. 23.

Massey noted South Carolina had already required a physician to perform an ultrasound before an abortion and allow patients to view the ultrasound if they want.

“That rule is still in place. Now it just says if there is cardiac activity that is present on that ultrasound, if you can hear the heart beating, then you can’t perform the abortion,” Massey said.

In the new lawsuit, abortion providers are asking the court to rule that the “fetal heartbeat” ban should go into effect after nine weeks into a pregnancy when most of the heart has formed.

Planned Parenthood said moving the ban to nine weeks from six weeks is the difference between turning away half of its patients seeking abortions and 90% of them, based on data Planned Parenthood said it has collected at its clinics since the new law went into effect last month.

“We’re just going to continue, if we have to go to court every single day, to fight for these people in South Carolina,” Ringer said.

Abortion providers have already asked the Supreme Court to answer this question when they requested a rehearing last month, following the justices’ decision to uphold the law.

The court denied that rehearing request.

Planned Parenthood said it is more confident in how this lawsuit will be received because it is narrow and attempts to answer concerns that the justices themselves raised.

Brandon Charochak, a spokesman for Gov. Henry McMaster, said the governor, who is not named in this lawsuit, intends to file a motion to intervene, as he did with the previous challenge.

“If the court grants his motion and agrees to hear Planned Parenthood’s latest lawsuit, the governor will once again defend the heartbeat law and protect the right to life in South Carolina,” Charochak said in a statement.

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