Planned Parenthood Alleges South Carolina ‘Fetal Heartbeat’ Bill is Unconstitutional

Calling the action “an affront to the dignity and health of South Carolinians” and “an attack” on individuals already facing health care access inequity, the sole health centers operating abortion clinics in the state are challenging the constitutionality of South Carolina’s latest Senate bill that bans abortions once an embryonic or fetal heartbeat is detected.

Passed by the state Senate on Jan. 28 and signed into law by Gov. Henry McMaster on Thursday, Senate Bill 1, or the South Carolina Fetal Heartbeat and Protection from Abortion Act, prevents women from having legal abortions after embryonic or fetal cardiac activity  — which can occur as early as six weeks into a pregnancy  — and criminalizes the procedure if done after detecting a heartbeat.

Filing their complaint against state lawmakers Thursday, Planned Parenthood South Atlantic (PPSA) and Greenville Women’s Clinic (GWC), both individually and on behalf of their patients, physicians, and staff, plus GWC co-owner and physician Terry L. Buffkin, called into question state lawmakers’ definition of “fetal heartbeat” as including any “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.”

“The term, therefore, covers not just a ‘heartbeat’ in the lay sense, but also early cardiac activity present before development of the cardiovascular system,” according to the complaint. “Early in pregnancy, even with ultrasound, this activity would not be audible but would instead appear as a visual flicker.”

Further, the plaintiffs proffered that the act even goes past the stated “fetal heartbeat” threshold for banning abortions because the organism developing gestationally is actually considered an embryo “in the medical field” until at least 10 weeks after a woman’s last menstrual period (LMP), when pregnancy begins.

These new strictures will prohibit nearly all abortions after six weeks of pregnancy, with certain exceptions in place when the pregnant patient’s life or livelihood is in danger, when it is determined that the fetus will not sustain life after birth, or in cases of rape and incest  — however, the plaintiffs noted that these exceptions are made narrow by further regulations, such as a physician needing to report any abortion procedure performed because of alleged rape or incest, along with the patient’s contact information, to law enforcement within 24 hours of the procedure.

Six weeks is a short time frame to even discover a pregnancy, the plaintiffs claimed. At-home pregnancy tests mainly only become effective four weeks post-fertilization, according to the complaint, and a person may not have any indication of pregnancy until four weeks after their last period depending on when the egg is fertilized, given a regular menstrual cycle lasts four weeks. This means that even someone with a regular cycle will have two weeks to learn of the pregnancy, decide whether to have an abortion, and then make arrangements for the procedure.

The time frame also disproportionately poses challenges for low-income individuals, according to the plaintiffs, because without stable income or health insurance, patients “must often make difficult tradeoffs among other basic needs like food or rent to pay for their abortions” often while navigating “inflexible or unpredictable job hours and childcare needs, that may delay the time when they are able to obtain an abortion.”

Patients of color also may be disproportionately affected by the law, the plaintiffs argued. Between 2014 and 2018, data published in 2020 found that the mortality rate for women of color in South Carolina who gave birth was 2.6 times higher than for white women.

The plaintiffs alleged that the law “is in flagrant violation of nearly five decades of settled Supreme Court precedent,” namely Roe v. Wade, which protects the right to an abortion, and the 14th Amendment to the U.S. Constitution.

“By banning previability abortion upon identification of embryonic or fetal cardiac activity, which may occur as early as six weeks LMP (or even sooner), the Act violates the substantive due process rights of Plaintiffs’ patients to previability abortion, as guaranteed by the Fourteenth Amendment to the U.S. Constitution,” the plaintiffs argued.

Burnette Shutt & McDaniel is representing all of the plaintiffs. PPSA additionally is represented by the Planned Parenthood Federation of America, and the Center for Reproductive Rights additionally is representing GWC and Buffkin.