On May 25, 2023, Governor McMaster signed Senate Bill 474, effectuating the General Assembly’s second attempt at the Fetal Heartbeat and Protection from Abortion Act (the “Act”), which generally prohibits abortion at any point after a fetal heartbeat is detected. Less than a day later, a Richland County judge temporarily blocked enforcement of the Act. 

Brief Summary of the Act

Under the new law, a physician or other qualified professional must perform an obstetric ultrasound on the pregnant patient prior to performing or inducing an abortion to determine whether a fetal heartbeat is present. In the Act, fetal heartbeat is defined as “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.”

The ultrasound images must be displayed to the pregnant patient if she so chooses, and the patient has a right to be informed of certain information and receive a thorough explanation of the procedure and risks involved before the abortion is performed or induced.

Unless a fetal heartbeat is detected, an abortion may be performed provided that the notification and written informed consent requirements in the Act are met.

If a fetal heartbeat is detected, abortions are strictly prohibited unless one of the four statutory exceptions apply. Exceptions exist in cases of rape and incest when the gestational age is less than 13 weeks, in the event of a medical emergency, meaning a condition is present that creates a risk of death or serious substantial and irreversible impairment of a major bodily function, not including psychological or emotional conditions^[1], and the existence of a fatal fetal anomaly, which is defined as a “profound and irremediable congenital or chromosomal anomaly that, with or without the provision of life-preserving treatment, would be incompatible with sustaining life after birth.” Each exception has a distinct list of notations that must be made and maintained in the patient’s chart.

Further, the rape and incest exception mandates that the physician, within twenty-four hours of the abortion procedure, report to the local county sheriff the allegation of rape or incest and the name and contact information of the pregnant patient making the allegation, and the Physician must inform the pregnant patient of this duty to report prior to performing or inducing the abortion.

The Act does not apply to the use, sale, or administration of contraceptives so long as the contraceptives are prescribed and used in accordance with the manufacturer’s instructions and are not intended to cause or induce abortions.

Violations of the Act could result in hefty criminal and civil liabilities, including felony conviction, fine of up to ten thousand dollars ($10,000), and imprisonment for up to two years on any person for performing or inducing an Abortion in violation of the Act; actual and punitive damages for violation of the Act due to individuals entitled to make such claims under the Act; and statutory damages of ten thousand dollars ($10,000) for each violation on each defendant found to have violated the Act in addition to and separate and distinct from all other damages.

The Act also imposes strict medical record requirements on both individual physicians performing the abortions and the medical facility which may own the patients’ medical records. Failure to maintain the requisite medical records may result in felony conviction, a fine up to ten thousand dollars ($10,000), and imprisonment for up to two years for the Physicians and a fifty thousand dollar ($50,000) fine for the entity with ownership of patient records.

State Supreme Court Precedent

On January 5, 2023, the South Carolina Supreme Court, in a 3-2 vote, struck down a similar fetal heartbeat bill. In an opinion authored by now-retired Justice Hearn, the sole woman on the Court, the Court held that the fetal heartbeat bill in question acted as an unreasonable restriction upon a woman’s right to privacy granted under the South Carolina Constitution and was thus unconstitutional. The majority took issue with the limited time in which in a pregnant patient may seek an abortion, given that the fetal heartbeat is typically detected around 6 weeks gestation. Specifically, the Court held,

While the State has an interest in fetal life and in providing women with vital medical information about their pregnancy, we agree with Petitioners that the Act's six-week ban does not serve that interest. Rather, it forecloses abortion in South Carolina for many pregnant women who may seek it, underscoring the fact that any inclusion of an "informed choice" is contradictory with the remaining provisions. By leaving no room for many women to exercise that choice, the Act prohibits certain South Carolinians from making their own medical decisions…. Thus, it cannot be deemed a reasonable restriction on privacy[.]

Planned Parenthood of South Atlantic v. State, 438 S.C. 188, 216 882 S.E.2d 770, 785 (2023).

On Feb. 8, 2023, Justice Hill was elected as an associate justice of the Supreme Court to fill the vacancy left after Justice Hearn’s retirement.

Immediate Legal Challenges

Almost immediately following Governor McMaster’s signing, Planned Parenthood South Atlantic, Katherine Farris, M.D., Greenville Woman’s Clinic, and Terry L. Buffkin, M.D. – the petitioners in the previous Supreme Court case – filed suit in Richland County and made an emergency motion for a temporary restraining order. Copies of the summons and complaint and plaintiff’s emergency motion can be found via the Richland County public index. The motion was heard on May 26 at 10:30 am, and Judge Newman granted the plaintiff’s motion for an injunction pending the outcome of further litigation. 

FOOTNOTES

[1] It is presumed that the following medical conditions constitute a risk of death or serious risk of a substantial and irreversible physical impairment of a major bodily function of a pregnant woman, not including psychological or emotional conditions: molar pregnancy, partial molar pregnancy, blighted ovum, ectopic pregnancy, severe preeclampsia, HELLP syndrome, abruptio placentae, severe physical maternal trauma, uterine rupture, intrauterine fetal demise, and miscarriage.