Planned Parenthood sues to expand South Carolina abortion access under strict new ban

FILE - The legal team for Planned Parenthood South Atlantic speaks outside the South Carolina Supreme Court building in Columbia, S.C. on Tuesday, June 27, 2023. In a complaint filed Thursday, Sept. 14, 2023, the team wrote that a strict new abortion ban should be interpreted to take effect after approximately nine weeks of pregnancy. (AP File Photo/James Pollard, File)
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Associated Press/Report for America

COLUMBIA, S.C. (AP) — Abortion providers urged South Carolina’s highest court on Thursday to lengthen the narrow window when a pregnancy can be legally terminated under the state’s strict new ban.

The conservative state’s all-male Supreme Court last month upheld a so-called “fetal heartbeat” law commonly understood to restrict access after about six weeks of pregnancy, which is before most women know they’re pregnant.

However, the court’s majority opinion noted that the medical definitions written by the Republican-dominated state Legislature gave unclear directions to doctors about when they can provide an abortion. In a footnote, Justice John Kittredge wrote that the court would “leave for another day” whether the language “refers to one period of time during a pregnancy or two separate periods of time.”

Attorneys for Planned Parenthood believe they have an answer. In a complaint filed Thursday, they wrote that the ban should be interpreted to take effect after approximately nine weeks under the statute’s language, because that’s when most of the main parts of the eventual heart have developed.

“The court itself has raised this issue and we think it needs to answer this ambiguity that it’s left open,” Catherine Humphreville, an attorney for Planned Parenthood Federation of America, told The Associated Press.

“As it stands right now, providers are forced to take this more conservative approach because they are risking, essentially, jail time and the loss of their licenses,” they said.

Spokespeople for both the South Carolina Senate majority leader and speaker of the House did not have responses Thursday afternoon to the lawsuit.

Republican Gov. Henry McMaster will file a motion intervening in the case to “once again defend the heartbeat law and protect the right to life in South Carolina,” according to a statement from spokesperson Brandon Charochak.

The law prohibits most abortions after an ultrasound detects cardiac activity. Doctors who violate the ban face up to two years imprisonment.

Cardiac activity can occur as early as six weeks into a pregnancy. The South Carolina General Assembly defined a “fetal heartbeat” as “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.”

Planned Parenthood South Atlantic argues that the most cautious medical consensus suggests the major components of what ultimately becomes the heart — the walls, valves, four chambers and electrical conduction system necessary for contractions — do not typically form before nine weeks of pregnancy.

A decision in their favor would mark a big shift in the number of people able to legally obtain abortions at Planned Parenthood facilities in Columbia and Charleston. According to the complaint, around 91% of patients there have been denied abortions in the roughly three weeks since the latest ban took effect. About 58% of those unable to get abortions were nine weeks pregnant or less.

“It means the difference between turning away 50% of people and turning away 90% of people,” Susanna Birdsong, the general counsel for Planned Parenthood South Atlantic, told the AP.

Abortion providers found themselves on the defensive after the state’s highest court reversed course this summer from its January decision that a similar 2021 ban violated the right to privacy. Planned Parenthood South Atlantic Communications Director Molly Rivera said the group is now fighting “for every inch of ground” after failing to get the new law completely struck.