Justices: Legislators clearly intended law to take effect with electrical impulses that begin six weeks into pregnancy
By Skylar Laird
SCDailyGazette.com
COLUMBIA — A state Supreme Court ruling Wednesday maintains a six-week abortion ban in South Carolina.
Issuing their third ruling on abortion since 2022, justices unanimously decided state law’s definition of “fetal heartbeat” — the sound of which makes an abortion illegal — applies to when an ultrasound first detects cardiac activity.
Attorneys for Planned Parenthood argued the ban that took effect in August 2023 should apply at nine weeks rather than six, since the heart doesn’t actually form until roughly the ninth week of pregnancy.
Justices disagreed, noting repeatedly that the debate in the Statehouse and prior arguments before the justices themselves referred to the law “consistently and exclusively” as a six-week ban.
“The answer to the question is clear: the General Assembly was referring to the occurrence of electrical impulses that mark the early onset of ‘cardiac activity’ as we interpret ‘fetal heartbeat,’” Justice John Few wrote in the opinion signed by three justices. Justice Gary Hill agreed with the majority but wrote his own opinion.
Like in the law itself, which doesn’t specify a number of weeks when abortion becomes illegal, justices’ ruling does not set a timeline.
But “the biologically identifiable moment in time we hold is the ‘fetal heartbeat’ under the 2023 Act occurs in most instances at approximately six weeks of pregnancy,” Few wrote.
That’s clearly what legislators intended, justices wrote.
Even legislators opposed to the law believed the ban started at six weeks, as indicated by their proposed amendments. For instance, three amendments debated on the House floor would have held a father responsible for child support starting at six weeks of pregnancy.
“While none of these Amendments passed, they each clearly indicate the members proposing them — again, opponents of the Act — considered the 2023 Act to be effective upon events occurring at approximately six weeks of pregnancy,” Few wrote.
Paige Johnson, president of Planned Parenthood South Atlantic, vowed to continue fighting “to ensure patients receive the care they need and fight for their ability to control their own bodies, lives, and futures,” she said in a statement.
“Justice did not prevail today, and the people of South Carolina are paying the price,” Johnson said.
Much of Planned Parenthood’s argument in its latest challenge before the state’s high court centered around the exact wording of how the law defined a “fetal heartbeat.”
A fetal heartbeat, under the 2023 law, is “the steady and repetitive rhythmic contraction of the fetal heart.”
Those electrical impulses are not “steady” or “rhythmic,” as the law requires, attorneys for Planned Parenthood argued. At that point, the pregnancy is still considered an embryo, not a fetus. And no heart forms until several weeks later in the pregnancy, meaning there is no “fetal heartbeat,” attorneys argued.
But the words “steady” and “rhythmic” have no medical definition, Few wrote.
Legislators have previously used the words “embryo” and “fetus” interchangeably, and attorneys for Planned Parenthood didn’t give an exact moment when the pregnancy changes from one to another. And it’s unclear exactly when a heart is considered “formed,” Few wrote.
One word did have a clear meaning, justices decided.
Under the law, most abortions are no longer legal after “the unborn child’s fetal heartbeat has been detected.” That suggests “an actual, observable event,” Few wrote.
“The only point in the progression of a pregnancy when cardiac activity goes from ‘cannot be detected’ to ‘detected’” is the moment a doctor can hear the electrical impulses that occur around six weeks, Few wrote.
Gov. Henry McMaster praised the state high court’s latest decision as again upholding the law, as justices did in 2023.
“Time and time again, we have defended the right to life in South Carolina, and time and time again, we have prevailed,” McMaster said in a statement. “Today’s ruling is another clear and decisive victory that will ensure the lives of countless unborn children remain protected and that South Carolina continues to lead the charge in defending the sanctity of life.”
Attorney General Alan Wilson called the ruling “a resounding win” and pledged to fight for the law “in every courtroom” no matter how many times it’s challenged.
Taylor Shelton, the plaintiff in Planned Parenthood’s case, quickly learned she was pregnant but couldn’t get an appointment for an abortion before the six-week cutoff, attorneys have said in court filings. Attorneys argued that Shelton, who traveled to North Carolina to receive an abortion, should have been eligible for one in her home state.
Many people don’t yet know they’re pregnant by six weeks in a pregnancy, said Jace Woodrum, executive director of the state American Civil Liberties Union. Some doctors are reluctant to provide lifesaving care to pregnant women out of fear that they’ll be prosecuted under the law, he said.
Under the law, doctors who violate the ban face the possibility they’ll lose their license, spend up to two years in prison and/or have to pay a $10,000 fine.
“The extreme ban on most abortions is endangering the lives of pregnant South Carolinians and driving medical care providers away from our state,” Woodrum said in a statement.
Skylar Laird covers the South Carolina Legislature and criminal justice issues for the S.C. Daily Gazette, part of States Newsroom, the nation’s largest state-focused nonprofit news organization. Originally from Missouri, Laird previously worked for The Post and Courier’s Columbia bureau.
