Judge says South Carolina can enforce 6-week abortion ban amid dispute over when a heartbeat begins

COLUMBIA, S.C. (AP) — A state judge has ruled that South Carolina can continue to enforce a ban on nearly all abortions around six weeks after conception as an appeal continues on what exactly defines a heartbeat under the law.

Planned Parenthood had asked the law be set aside as courts parse through its wording, which includes alternate definitions of when cardiac activity starts, potentially extending the time after which abortions can no longer be performed under the 2023 law.

The law says abortions cannot be performed after an ultrasound can detect “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.”

The definition is currently being interpreted to mean around six weeks after someone’s last period. But what follows the “or” in the sentence could require that a heart has formed, and medical experts say that doesn’t happen until around nine weeks.

The state Supreme Court itself noted the different definitions when it upheld the law last year, saying resolving them would be a question “for another day.”

Circuit Judge Daniel Coble wrote in his ruling released late Thursday that the state’s long-established legal precedent says that when there are disagreements on interpreting a law, judges need to give the most weight to the intent of lawmakers.

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Six weeks was the standard cited by legislators, previous court rulings and even Planned Parenthood when it argued against the first version of the ban that was overturned by the state Supreme Court, Coble noted. A new justice and tweaks in the law led the high court to reverse itself and uphold the second version last August.

“This Court cannot locate one instance of legislative history indicating a time frame of any other period other than the six-week mark, much less nine weeks,” Coble wrote, citing at least 20 times when lawmakers, including many Democrats in the Republican dominated General Assembly, called it a six-week ban during debates.

Coble’s ruling against a temporary suspension of the law is far from the final say. Planned Parenthood is expected to appeal and argue that the different definitions of heartbeat mean the law is too vague to be constitutional.

For now, the ruling keeps in place the current situation in South Carolina banning abortions after six weeks, unless the pregnancy was caused by rape or incest, the fetus likely won’t survive outside the womb or the mother’s health is at serious risk.

Planned Parenthood said in court papers that in the first five months after the new law took effect, three-quarters of women seeking abortions were turned away because their pregnancies were too far along, and 86% of those three-quarters could have had the procedure if the law allowed abortions up to nine weeks.

“Life will continue to be protected in South Carolina, and the governor will continue his fight to protect it,” Republican Gov. Henry McMaster’s spokesman, Brandon Charochak, said after Thursday’s ruling.

Coble’s ruling raised even more inconsistencies in the law’s language that may become points of contention in later appeals. The law refers to a fetal heartbeat, but most experts consider a fertilized egg to be an embryo for about 10 weeks after conception before transitioning into a fetus.

“The only point of this line of argument that this Court is making is to illustrate that while Plaintiffs claim the definition of ‘fetal heartbeat’ clearly indicates the nine-week time frame, this definition is in fact ambiguous. If the definition were as clear as Plaintiffs claim, then this case would be far simpler than it is,” Coble wrote.

Since the U.S. Supreme Court overturned Roe v. Wade in 2022, ending a nationwide right to abortion, most Republican-controlled states have started enforcing new bans or restrictions, and most Democrat-dominated ones have sought to protect abortion access.

Currently, 14 states are enforcing bans on abortion at all stages of pregnancy, with limited exceptions, and South Carolina and two others have bans that kick in at or about six weeks into pregnancy.

The punctuation in South Carolina’s law differs from other six-week bans, and provided an opening for the lawsuit filed by Taylor Shelton along with Planned Parenthood.

Shelton said she had sought medical attention for pain from her intrauterine device and was stunned to find out, just two days after missing her period, which she tracked regularly, that she was pregnant.

Because doctors in South Carolina were unsure how to define a heartbeat, couldn’t be completely sure she was within six weeks, and could face criminal charges if the state determined they performed illegal abortions, she ended up in North Carolina, driving for hours to several appointments to undergo the procedure.

“Today I stand before you angry — angry at a system that seeks to control our bodies and dictate our choices,” Shelton said after the case was argued May 4. “But I also stand determined, fueled by the conviction that no one should endure what I went through. We deserve better. We deserve clear, unequivocal laws.”