How late is too late to get an abortion in SC? Woman sues after having to leave state

A South Carolina woman who said she had to travel to another state for an abortion is suing South Carolina over what she says is confusion about the actual time it takes for a fetus to develop a heartbeat.

Proponents of the ban say it’s six weeks, while opponents say nine.

A state court will now consider the question after Taylor Shelton, along with Planned Parenthood South Atlantic and its chief medical officer, Katherine Farris, filed a lawsuit Monday challenging South Carolina’s “Fetal Heartbeat and Protection from Abortion Act,” which generally bans abortions following six weeks of pregnancy. Plaintiffs argue that the state’s definition of a “fetal heartbeat,” and its detection, is flawed.

Plaintiffs contend that the state’s ban is unclear in that in fails to specify whether the ban is triggered by detection of the earliest embryonic electrical activity, after roughly six weeks of pregnancy, or at the point where the fetus’ heart actually forms, at nine weeks.

The lawsuit follows several efforts by Planned Parenthood South Atlantic to get the state Supreme Court to rule on the purported ambiguity over when a fetal heartbeat can be detected by ultrasound. The court found the fetal heartbeat act constitutional last fall.

The court has refused to revisit the question, punting the matter back to the lower courts.

South Carolina’s ban defines “fetal heartbeat” as “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.”

Shelton discovered she was pregnant after the state’s abortion ban went into effect last August. Shelton said she was unable to receive an abortion in South Carolina even before her sixth week of her pregnancy.

The reason? Abortion providers, according to Shelton and Planned Parenthood, took a highly conservative approach in following the ban’s adoption, which carried significant criminal penalties and license revocations for those performing abortions in violation of the law.

Shelton ultimately received the procedure in North Carolina.

“Despite recognizing her pregnancy very early, and making her decision very soon after, Ms. Shelton was unable to get an appointment with one of South Carolina’s abortion providers before her pregnancy would have progressed to six weeks,” the lawsuit read.

“By the time she obtained an abortion, Ms. Shelton was more than six weeks pregnant, roughly the point at which a so-called fetal heartbeat can be detected,” the complaint said. “Ms. Shelton used contraceptives and early pregnancy testing but was still unable to get an abortion before six weeks.”

Prior to the bill’s passage, South Carolina did not require abortion providers to perform ultrasounds before the procedure. But abortion providers such as Planned Parenthood, performed them when appropriate, including times when patients were unsure of the gestational age of their pregnancy. Such a need generally arose when the patient was unsure of her last menstrual period.

In their suit, Shelton and Planned Parenthood asked the court to block the six-week ban while also clarifying that the definition of “fetal heartbeat” includes both “cardiac activity” and “the steady and repetitive rhythmic contraction of the fetal heart” happening at the same time — roughly nine weeks of the pregnancy.

“By failing to set forth clear guidelines or criteria that would allow physicians of common intelligence to discern when the Act’s abortion ban does and does not apply, chilling their ability to provide abortions after six weeks, Planned Parenthood South Atlantic and Dr. Farris are subjected to criminal liability without ’fair notice and proper standards for adjudication,’” the lawsuit said.