This was 3rd time in three years state Supreme Court considered a challenge to state’s abortion ban
By Skylar Laird
SCDailyGazette.com
COLUMBIA — What the state Supreme Court considers a “fetal heartbeat” will determine whether South Carolina’s abortion ban remains at six weeks or gets extended to nine.
The arguments of Wednesday, Feb. 12, marked the third time in three years the state Supreme Court heard a challenge to the state’s abortion ban. Unlike the past two cases, the latest one does not question whether the law is constitutional, but rather at what point in a pregnancy the ban begins.
The law has been commonly called a six-week ban, including by both sides in previous hearings before the state’s high court.
But attorneys for Planned Parenthood argued what matters in this case is the terminology, and what doctors consider a “fetal heartbeat” means the ban should reset at nine weeks of pregnancy. Nowhere in the law does it say six weeks, meaning the argument is really about the development that typically occurs around those points in a pregnancy, attorneys and justices said.
Circuit Court Judge Daniel Coble ruled in May that the law could stand at six weeks. After Planned Parenthood appealed the decision, the case skipped the Court of Appeals. The Supreme Court agreed to take the case it had originally declined to hear directly.
The state law justices held as constitutional in August 2023 bans abortions after a doctor detects “the presence of the unborn child’s fetal heartbeat,” which is defined as “the steady and repetitive rhythmic contraction of the fetal heart.”
Exactly what counts as a fetal heartbeat was central to Wednesday’s arguments.
Around six weeks of pregnancy, an embryo forms the organ that will become its heart. That organ pumps blood through the embryo’s body and makes the sound doctors refer to as a heartbeat when performing an ultrasound, argued Thomas Hydrick, a deputy solicitor for the Attorney General’s Office.
“It may develop, but the heart is performing its function,” Hyrdick said.
But that organ is not technically a heart, said Catherine Humphreville, an attorney for Planned Parenthood. At six weeks, the organ lacks the four chambers distinct to a heart, with the valves that open and close to create the sound of a heartbeat. Pumping blood through the body is not enough, Humphreville said.
“There’s nothing in the act that says we’re talking about detecting blood flow,” Humphreville said.
Also in question is the Legislature’s use of the word “fetal” before heartbeat. At six weeks, what doctors are seeing is an embryo, not a fetus, Humphreville said.
When deciding whether an embryo has become a fetus, doctors look at the embryo’s size and the time since a woman’s last menstrual period. Typically, a fetus develops around nine or 10 weeks, Humphreville said.
“Simply put, you cannot have a fetal heart or a fetal heartbeat without a fetus,” Humphreville said.
That may be medically true, but when legislators wrote the law, they clearly meant for it to apply at six weeks, the state’s attorneys said.
During hours of debate, opponents and proponents alike referred to the bill as a six-week ban. If anyone had understood it to mean differently, they certainly would have gotten up and said so, said Grayson Lambert, an attorney for the governor’s office.
“You’ve got days of debate from the Senate and the House, and never a person says, ‘This is a nine-week, or this is a 10-week law,’” Lambert said. “Not a single person.”
Justice John Few noted that even Planned Parenthood argued before the state’s high court in 2023 that the ban would apply at six weeks of pregnancy. When pressed about timing, attorneys maintained that the law would begin at six weeks, he said.
“What you said set up a conversation that leaves a very clear impression that everybody’s talking about the event that occurs at six weeks,” Few said to Humphreville.
The reason for that was because doctors defaulted to enforcing the ban at six weeks out of fear of the consequences of violating the law, which could require paying a $10,000 fine, losing their medical license and/or spending two years in prison, Humphreville said.
It was justices themselves who opened the door to the question of when the law would go into effect. In his 2023 majority opinion, now-Chief Justice John Kittredge wrote in a footnote that “we leave for another day (in an as-applied constitutional challenge) the meaning of ‘fetal heartbeat.’”
On Wednesday, Justice George James said the question of defining the law at nine weeks versus six weeks is “quite arbitrary.”
Specifics on the development of an embryo or fetus depends on a woman and her circumstances, so doctors should instead rely on a specific point in time. The question will then become what exactly doctors are looking for, he said.
“It seems to me that this focus on weeks ignores what really is going to happen,” James said. “What is the doctor going to detect? To me, that has nothing to do with weeks.”
Regardless of how the justices decide, representatives for Planned Parenthood said they would continue suing to expand abortion access under the law.
“We will bring many more” lawsuits, said spokeswoman Vicki Ringer. “We will fight every section of the code, every bill that’s introduced.”
The state’s attorney general also vowed to continue fighting those challenges to the law, saying legislators’ intentions in implementing a six-week ban were clear.
“I will always fight to uphold the sanctity of life,” state Attorney General Alan Wilson said in a statement.
Skylar Laird covers the South Carolina Legislature and criminal justice issues. Originally from Missouri, she previously worked for The Post and Courier’s Columbia bureau. S.C. Daily Gazette is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
