By Giulia Schaub, Editor-in-Chief
South Carolina became the most recent state to enact a “heartbeat” bill, joining eleven other states that have enacted similar legislation since 2019.[1] After three days of debate, the South Carolina Senate passed the bill in January, with strong support from its Republican majority.[2] Governor Henry McMaster signed S.1[3], also known as the South Carolina Fetal Heartbeat and Protection from Abortion Act, into law on Thursday, February 18, 2021, which ultimately bans abortions after a heartbeat can be detected, except in cases of rape, incest, or if the life of the mother is in jeopardy.[4] Another exception, added to the bill the day before its enactment, allows for the procedure to occur if an anomaly is detected and deemed to be incompatible with life; however, most tests for anomalies cannot be performed until after the eleventh week of gestation.[5] The bill specifically requires physicians to perform an ultrasound before an abortion is performed; if a heartbeat is detected and the physician still goes forth with the procedure, they may face a felony charge and lose their medical license.[6]
Just one day after Governor McMaster signed the bill, however, Judge Mary Geiger Lewis of the United States District Court for the District of South Carolina suspended the law for two weeks after Planned Parenthood South Atlantic filed a lawsuit against the state.[7] Similar to the lawsuits Planned Parenthood has filed against other states that have passed heartbeat hills, the organization argues that a ban on abortions after a heartbeat is detected is a de facto ban in practice: a heartbeat can be detected as early as six weeks into a pregnancy, which is often too early for many women to recognize that she is pregnant.[8]
Even if a woman knows she is pregnant that early on, Planned Parenthood argues that heartbeat bill would leave her with little time to make an informed choice. “The act would force patients to race to a health center for an abortion, even if they did not yet feel confident in their decision,” Katherine Farris, chief medical officer for Planned Parenthood South Atlantic, argued in court documents.[9]
Judge’s Lewis’ suspension of this law will be renewed until she can hold a substantial hearing on the matter on March 9th.[10] Planned Parenthood requested the law not be enforced until their lawsuit against the state is resolved, in part because of the 75 women scheduled to have abortions in South Carolina in the week following the bill’s signing that, under the new law, would be otherwise banned.[11]
When announcing the suspension, Judge Lewis stated that this law was much stricter than the federal precedent she is obligated to rule by.[12] However, supporters of this bill, specifically moderate Republicans, believe the exceptions added to this bill render it more moderate compared to other heartbeat bills, according to Mary Ziegler, a professor at Florida State University and author of “Abortion and the Law in America: Roe v. Wade to the Present.”[13] “It’s not lost on South Carolina lawmakers that under current Supreme Court jurisprudence, this bill is unconstitutional…. Roe v. Wade and the cases following it, including Planned Parenthood v. Casey, held that there was a right to choose abortion before fetal viability, which is usually quite late in pregnancy,” she explained in an interview with Charlotte’s NPR branch.[14] She believes that these bills are a vehicle to overturn Roe by moving through the court system with the U.S. Supreme Court as their destination.[15] “The arguments for the bills are essentially that Roe is wrong and that there is no constitutional abortion right.”[16]
Abortion opponents want these bills to reach the highest court in the land, as it has become its most conservative in decades, with six justices appointed by a Republican president and three appointed by a Democratic president.[17] Their hope is that the Supreme Court will side with the state legislatures and ultimately diminish Roe’s authority.[18]
[1] https://www.wfae.org/politics/2021-02-23/a-closer-look-at-south-carolinas-new-abortion-law-and-its-legal-challenge
[2] https://www.thestate.com/news/politics-government/article248828939.html
[3] Id.
[4] https://thehill.com/homenews/state-watch/539451-south-carolina-governor-signs-bill-banning-most-abortions?rl=1
[5] https://www.thestate.com/news/politics-government/article248828939.html
[6] Id.
[7] https://apnews.com/article/columbia-reproductive-rights-henry-mcmaster-south-carolina-courts-465712cb85d76bc7af4106046191c8f4
[8] Id.
[9] Id.
[10] https://apnews.com/article/columbia-reproductive-rights-henry-mcmaster-south-carolina-courts-465712cb85d76bc7af4106046191c8f4
[11] Id.
[12] Id.
[13] https://www.wfae.org/politics/2021-02-23/a-closer-look-at-south-carolinas-new-abortion-law-and-its-legal-challenge
[14] Id.
[15] Id.
[16] Id.
[17] https://www.usatoday.com/story/news/politics/2021/02/23/states-anti-abortion-bills-2021-set-sights-roe-v-wade/4561634001/
[18] Id.
