In federal trial, doctors question when SC women can get abortions

CHARLESTON — Doctors disagreed over what might qualify a woman for an abortion under state law during a federal court hearing Thursday.

The hearing was the second in a three-day federal bench trial that started Wednesday in Charleston.

The case, filed last year, challenges the state’s so-called “fetal heartbeat” law. The 2023 law officially prohibits abortions after a fetus’ heartbeat is detectable, without setting the ban at any specific week. But rulings by the state Supreme Court make abortions illegal past six weeks of pregnancy, except in cases of rape and incest, to save the mother from life-threatening complications, or if the fetus is unlikely to survive outside the womb.

The punishment for doctors or anyone else performing an illegal abortion is up to two years in prison, a fine of up to $10,000 and the possibility of losing a medical license.

When, exactly, those exceptions apply is unclear, making most doctors reluctant to perform even abortions that might be legal, two obstetrician-gynecologists said Thursday. A third doctor in the field, testifying as an expert for the state, said she found the law easy to understand.

Doctors initially also argued the law violated their First Amendment rights to freedom of religion, saying their beliefs required them to give women the best care possible, including abortions. But U.S. District Judge Richard Gergel dismissed that argument before the trial began.

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Gergel will have final say in the case. He is not expected to rule this week.

‘Reasonable medical judgment’

Much of the questioning Thursday centered around several specific phrases in the law.

Whether an abortion is allowed is up to a doctor’s “reasonable medical judgment.” Abortions can be performed on a woman who faces “substantial and irreversible impairment of major bodily function,” or if she or her fetus faces “serious risk” of a fatal or hindering medical condition.

A doctor can also perform an abortion if a fetus has a condition making it “incompatible with sustaining life after birth.”

What those mean is unclear, said Jessica Tarleton and Dawn Bingham, two OB-GYNs who practiced in South Carolina until recently. None are technical medical terms, though doctors do use them to communicate with patients and each other, all three doctors said.

Pregnancy always carries risk, and that risk increases for women with existing medical conditions, the doctors said.

Common diseases, such as high blood pressure or diabetes, can lead to serious and even fatal complications down the line, they said. As could sickle cell disease, a genetic disorder that increases risk of blood clots and painful episodes, or kidney and heart disease, which can worsen with pregnancy.

Some doctors might consider a woman with hypertension at “serious risk” of developing complications causing “substantial and irreversible impairment of major bodily function,” both doctors said. That’s especially true if a woman already has health issues, they said.

“If I were to provide abortions to all patients who had hypertension and became pregnant, that would be a lot of people,” Tarleton said.

The law specified 11 medical conditions that would presumably make an abortion legal, including an ectopic pregnancy, severe preeclampsia, and uterine rupture.

The list is “not intended to exclude or abrogate other conditions that satisfy the exclusions,” the law reads.

But it can act as a guideline for doctors unsure of whether a certain condition qualifies for an abortion, said Joy Draper, a Greenwood OB-GYN testifying for the state. Even if a condition isn’t on the list, the conditions show the general level of severity legislators intended to address, she said.

For some doctors, though, the list creates more confusion, Tarleton said. Most conditions on the list are extremely serious and often fatal, but the examples also include miscarriages, which are rarely fatal on their own, she said.

Legislators put miscarriages in that paragraph after doctors testified they worried about facing criminal charges for treating women having a miscarriage, said Grayson Lambert, an attorney for the governor.

Similar ambiguity is true for the “fatal fetal anomaly” exception, Tarleton and Bingham said.

Even during the hearing, doctors disagreed about what counts as a fatal fetal anomaly. Draper, who described herself as “pro-life” and only recommends abortions when a mother’s health is at risk, said she would consider abortions for patients whose fetuses are diagnosed with certain chromosomal abnormalities that make survival after birth extremely unlikely.

A group of doctors at the Medical University of South Carolina attempting to come up with standards for the hospital decided otherwise, Tarleton said.

In some rare cases, children with usually fatal chromosomal abnormalities have survived for years, even into their teens. Even though most don’t survive, that was enough for the doctors to decide the abnormalities didn’t count under the law, she said.

Tarleton came across a similar situation when she and a colleague disagreed over whether a woman whose fetus was diagnosed with a heart abnormality might be able to get an abortion.

The condition is fatal except with extreme medical interventions, including complicated and risky heart surgery, which made Tarleton consider it a fatal fetal anomaly, she said. Her colleague disagreed because of the possibility of the baby surviving with surgery.

“I would’ve thought the condition severe enough to fall under the fatal fetal anomaly exception,” Tarleton said. “Because another physician didn’t, I didn’t feel legally safe” to recommend an abortion, she said.

What, exactly, counts as “sustaining life” is up for debate, doctors said. To some, that might mean the baby won’t survive longer than a few minutes. For others, it could mean a few days, or a few weeks, or even a month.

“How would a physician know that?” Gergel asked Tarleton. She didn’t know, she told him.

“Is that part of your anxiety over how the law would apply?” Gergel asked. It was, she said.

Doctors can’t determine the chances of a child dying immediately or surviving for years, Tarleton and Bingham said. Similarly, it’s impossible for doctors to know whether a woman’s health concerns might turn debilitating or fatal, sometimes until it’s too late, they said.

“There are pregnancies that can turn south very quickly,” Bingham said.

Although certainty would be nice, doctors are meant to use their discretion under the law’s guidance, Draper said.

Generally, the law tells doctors to use their “reasonable medical judgment” based on their training and experience to decide when an abortion is appropriate under the law.

When the consequence is a felony, however, doctors need more of a guarantee they won’t lose their licenses or go to prison, Bingham and Tarleton said.

Gergel questioned whether “reasonable medical judgment” can be consistently applied across different practices.

Draper said she doesn’t always follow every medical guideline issued because of her own views, shaped by her experience, training and morals. But that doesn’t mean every doctor practices medicine the exact same way she does, he said.

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“Would you agree with me they are practicing their own standards of care and their own reasonable medical judgment?” Gergel asked. Draper agreed.

Moving out of state

Both Tarleton and Bingham have left the state because of the law, they said.

Tarleton said she moved to Maryland earlier this year after struggling with the “enormous emotional burden” of feeling she couldn’t help patients who came to her seeking abortions. She specialized in complex family planning, which helps women with complicated pregnancies, including factors that put them at high risk of medical issues.

Bingham, who ran unsuccessfully for a state Senate seat in 2020 and came to Statehouse hearings multiple times to oppose anti-abortion legislation, said she moved to Connecticut to work for Yale in May 2025. She felt as though she couldn’t practice medicine the way she was taught because of the ban, and she feared prosecutors filing criminal charges if she performed an abortion not allowed under the law.

“In no way was I prepared to face criminal penalties, which this law imposes on physicians,” she said.

She and her husband decided years ago to make their home in South Carolina, and she’s maintained her medical certification in the state. She doesn’t have any concrete plans to move back, but she would if the law were changed, she said.

“I would like nothing more than to be back here and practicing,” Bingham said, choking up.

The doctors’ decisions to move could become a point of contention in the case. Lambert attempted to argue Thursday that the case no longer has the standing to continue because none of the doctors live in the state.

Gergel deferred that argument until Friday, saying he wanted to hear all the facts of the case first.