Henry McMaster, the Republican governor of South Carolina, on Thursday signed into law one of the most restrictive abortion policies in the country.
The legislation bans almost all abortions after six weeks of pregnancy, which is when doctors can usually first detect cardiac activity in an embryo ― but before many women know they are pregnant. Doctors who perform an abortion in violation of the law face up to two years in prison.
“Ladies and gentlemen, this step we take today was long in coming and monumental in consequence. But our battles are not over,” McMaster said. “Yet I believe that the dawn of victory is upon us.”
If allowed to go into effect, the legislation could ban almost all abortions for the nearly 1 million women of reproductive age in the state, according to advocates.
The South Carolina statute is part of a wave of extreme abortion measures passed by Republican-controlled state legislatures in recent years with the express goal of triggering a lawsuit that could overturn Roe v. Wade.
South Carolina is the 10th state to enact a ban on abortion once a so-called “fetal heartbeat” can be heard, following Missouri, Louisiana, Georgia, Kentucky, Mississippi, North Dakota, Iowa, Ohio and Tennessee. Despite the terminology used, an embryo does not have a heart at such an early stage of pregnancy. What is interpreted as a heartbeat in these bills is actually cardiac activity in the fetal tissue that will later become the heart as the embryo develops.
Courts have blocked every fetal heartbeat bill to date, concluding that it is unconstitutional to prohibit an individual from having an abortion before viability of the embryo. None of these “six-week bans,” as reproductive rights groups call them, are currently in effect and abortion remains legal in all 50 states.
The legislation already faces a legal challenge. Planned Parenthood South Atlantic and Greenville Women’s Clinic sued to block the bill in federal court a few hours before it was signed into law by McMaster.
The South Carolina Fetal Heartbeat and Protection from Abortion Act requires doctors to attempt to detect a fetal heartbeat if they think patients are at least eight weeks pregnant. If doctors find cardiac activity, which can occur as early as six weeks, they are barred from performing the abortion unless the pregnancy is the result of rape or incest or the mother’s life is in danger.
The exceptions themselves come with caveats. If a doctor terminates a pregnancy that is the result of rape or incest, they must report those criminal allegations to the sheriff in the county in which the abortion was performed within 24 hours and turn over the patient’s name and contact information.
“This is an unconstitutional abortion ban,” said Katherine Farris, chief medical officer of Planned Parenthood South Atlantic and a fellow with Physicians for Reproductive Health. “It makes it so that women in South Carolina will not have local access to safe and legal abortion by the time most women find out they’re pregnant.”
Doctors measure the start of a pregnancy using the first day of a woman’s last menstrual period. When a woman misses her period, she is considered to be four weeks pregnant. Under South Carolina’s law, a woman would have about two weeks after missing her period to determine that she is pregnant and find a clinic with availability to schedule an appointment.
Farris said that Planned Parenthood was being inundated with phone calls from women who are scared. “We’re going to make sure we’re there to answer questions and to help navigate the system,” she said. “But this is so anxiety-producing for patients. It would be anxiety-producing two years ago, but to do this in the middle of a pandemic? It makes an unplanned pregnancy so much harder.”
A similar six-week ban passed the South Carolina House in the 2019 session but was not voted on by the state Senate before the end of the 2020 session.
In a statement, Jenny Black, the president and CEO of Planned Parenthood South Atlantic, noted that South Carolina has some of the starkest health disparities in the U.S.
“If South Carolina politicians truly cared about the quality of life for women and children, they would get to work to expedite the vaccine rollout, expand Medicaid, and address the dangerously high rates of maternal mortality and infant mortality in the state,” Black said. “Abortion bans disproportionately hurt those that already have the least access to quality health care, including people with low incomes, people of color, people who are LGBTQ, and those who live in rural areas. If this law is allowed to go into effect, it will pose a serious threat to South Carolinians’ health and livelihood.”