COLUMBIA, S.C. — A South Carolina woman who traveled elsewhere for an abortion just days after reaching six weeks of pregnancy wants a court to affirm that the state’s ban on the procedure — when a “fetal heartbeat” can be detected — should not take effect until later in a pregnancy.
In a lawsuit filed in state circuit court Monday, Taylor Shelton and Planned Parenthood South Atlantic's chief medical officer Dr. Katherine Farris argued that the Republican-led state Legislature provided two different definitions of “fetal heartbeat" in its law restricting abortions. They said the correct interpretation is that the ban begins around nine weeks, and not six weeks as currently practiced.
The complaint marks yet another attempt by abortion providers to relax the state’s so-called fetal heartbeat law. The South Carolina Supreme Court reversed course last summer when it upheld the ban after striking down a similar version. Last fall, the justices declined to take up Planned Parenthood's request to broaden the narrow window in which a pregnancy can be legally terminated, leaving the group to start over at the lower courts.
In its law restricting abortion, the South Carolina General Assembly defines “fetal heartbeat” as “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.”
Ultrasounds pick up cardiac activity as early as six weeks into a pregnancy. But Planned Parenthood argues that the major components of the heart usually form around nine weeks. That point in time, the group said, is the relevant limitation under the law's wording.
Shelton, one of the plaintiffs, said her Charleston-area gynecologist responded dismissively when she first approached the office about options to end her unplanned pregnancy last September. Facing up to two years’ imprisonment for violating the ban, health care providers were treading carefully.
An earlier lawsuit by Planned Parenthood argued that the law violated patients' right to privacy. But some members of the state’s highest court decided last summer that the availability of contraception and period trackers made the strict ban a "reasonable” invasion of privacy.
Shelton noted that she was, in fact, using contraception — an intrauterine device — and tracked her typically regular menstrual cycles. She said she was shocked to learn of her pregnancy on Sept. 7 — two days after she missed her period.
After experiencing sharp pains, Shelton feared she might have an ectopic pregnancy. But her gynecologist found that the fertilized egg had not implanted outside the uterus, and that she did not face the potential of dangerous bleeding. She also learned, however, that her body had been trying to expel the IUD, making it bend and sting.
The doctor removed the T-shaped coil — one of the most effective forms of birth control — and she went back to finding an abortion provider.
After three trips to North Carolina — including a four-hour drive to Chapel Hill for a Sept. 19 appointment and a two-hour drive to Wilmington for a Sept. 23 visit — Shelton finally got her abortion at roughly six weeks and four days pregnant.
Despite making the decision “quickly and confidently,” Shelton wrote that she faced “total apprehension” while enduring “unnecessary and unfair hardship.” She described the process as a “race to the finish line” that left her with “two weeks of uncertainty” in an interview with The Associated Press.
“I don’t think it’s enough time for someone, clearly, to obtain an abortion,” Shelton said of the six-week interpretation.
The South Carolina Supreme Court has acknowledged the uncertainty of the law's language. During oral arguments, one justice asked whether the definitions referred to one or two periods of time. Ultimately, Justice John Kittredge wrote in his opinion that the question would be left “for another day.”
Republicans have argued that abortion providers are backpedaling on their previous warnings about the ban by raising this point. South Carolina Senate Majority Leader Shane Massey has noted that Planned Parenthood repeatedly argued in court that the law unconstitutionally bans abortions after six weeks, not nine weeks.
“Planned Parenthood and the axis of abortion-providers know what the law means. We all do. South Carolina’s Heartbeat law prohibits abortions after an ultrasound can detect fetal cardiac activity,” Massey said in a statement last September.
Susanna Birdsong, a lawyer for Planned Parenthood South Atlantic, responded that abortion providers have had to make that more conservative interpretation because of the “onerous penalties” for noncompliance. Planned Parenthood has stopped providing abortions when “early embryonic electrical activity” is visible by ultrasound, the group wrote in Monday's filing.
“We’re fighting for every inch of ground in South Carolina," Birdsong said.