How 2 commas could reset SC’s abortion ban to 9 weeks

COLUMBIA — At what point in a pregnancy does South Carolina’s so-called “fetal heartbeat” law ban abortions, at six weeks or nine?

That’s the question abortion providers are asking a Circuit Court judge to answer, noting it was South Carolina’s Supreme Court who invited the legal query. Until that’s settled, they’re seeking to suspend enforcement of the law, which took effect last August, before nine weeks gestation.

“To put it simply, you can’t have a heartbeat before you have a heart,” Kyla Eastling, an attorney for Planned Parenthood, said Thursday to Judge Daniel Coble.

The law has been consistently called a six-week ban. But it does not actually say that.

Rather, it bans abortion once an ultrasound detects the sound of “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.” It’s the clause between the commas that’s the center of abortion providers’ latest challenge.

At six weeks, there is detectable cardiac activity.

“But it is not steady; it is not repetitive; and it is not rhythmic,” Eastling said at a hearing in the Richland County Courthouse.

The earliest that happens in the forming heart is nine weeks. At six weeks, what’s heard are asynchronous electrical impulses bouncing back and forth in a “tubelike shape,” she said.

Lawyers for the state argued that may be medically true, but legislators’ intentions trump all.

In this case, “there is no clearer evidence of what that intent is,” said Grayson Lambert, attorney for Gov. Henry McMaster.

Through years of legislative debate and legal challenges, opponents and proponents alike referred to a six-week ban, he said, noting that’s how Planned Parenthood referred to it more than 300 times in two prior court cases.

“There is no evidence in the legislative record that anyone intended this” to be a nine-week ban, Lambert said. “The law’s been applied exactly as the Legislature intended.”

He also pointed to similar “fetal heartbeat” laws in other states that are six-week bans.

But Eastling argued South Carolina’s law stands out as the only one with those commas in the definition of what’s banned, which means it should be interpreted differently. The commas are akin to adding “in other words” to the definition, she said.

Whatever Coble decides will almost certainly be appealed. The case will likely be eventually settled by the state Supreme Court, which opened the door to a challenge on the ban’s timing but then refused to hear the case directly.

Justice John Few was the first to question the significance of the commas. Then, in a footnote of last August’s ruling, its author, Justice John Kittredge — who will become chief justice this summer — said defining what constitutes a “fetal heartbeat” would have to be decided later. And, while the high court declined to reconsider the case on that ground, soon-to-be-retired Chief Justice Don Beatty encouraged the abortion providers to sue again.

Filed in February, the case questioning the legal timing stood out among other challenges to bans enacted since the U.S. Supreme Court’s 2022 ruling that overturned Roe v. Wade. Others have sought clarity on medical exceptions in state bans.

The lawsuit recounts the experience of Lowcountry resident Taylor Shelton, who learned she was pregnant last September despite having an intrauterine device. Because of her IUD and regular menstrual cycles, she quickly realized she’d missed her period. Home pregnancy tests confirmed she was pregnant. Still, she could not get an appointment for an abortion at a clinic in South Carolina before the six-week cutoff.

She was eventually able to get an abortion in North Carolina, she told reporters after the hearing, but it took three trips and more than 20 hours in a car.

Shelton, who gave her age as mid- to late-20s, was fortunate in knowing she was pregnant at the earliest possible point, unlike other women with irregular periods who won’t know they’re pregnant until after the six-week cutoff. That she still couldn’t get an appointment “underscores the absurdity and cruelty of these restrictions,” she said.

“I stand before you angry, angry at a system that seeks to control our bodies and dictate our choices” she said. “But I also stand determined, fueled by the conviction that no one should go what I went through.”