Constitutional – 2024 South Carolina Fetal Heartbeat and Protection from Abortion Act – Definition of ‘Fetal Heartbeat’

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The “fetal heartbeat” under the 2023 South Carolina Fetal Heartbeat and Protection from Abortion Act occurs in most instances at approximately six weeks of pregnancy.

We affirmed the circuit court’s decision.

We addressed the narrow question this case presented: at what point in a woman’s pregnancy does a “fetal heartbeat” occur, as that term is defined in the 2023 South Carolina Fetal Heartbeat and Protection from Abortion Act? The significance of our answer to the question derives from the prohibition in the 2023 Act—subject to limited exceptions—that “no person shall perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting an abortion if the unborn child’s fetal heartbeat has been detected.”

The disputed definition reads: “Fetal heartbeat” means cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac. Planned Parenthood argued that, under this definition, a “fetal heartbeat” does not occur until after the four chambers of the heart have formed, which—using “a specified period of weeks” as shorthand—it contends occurs only “after approximately nine weeks of pregnancy.” The State argued—also in shorthand—a “fetal heartbeat” occurs at “approximately six weeks of pregnancy.” Throughout the legislative process for this Act and the 2021 Fetal Heartbeat and Protection from Abortion Act, as well as the three rounds of litigation over their constitutionality and now the definition of “fetal heartbeat,” the parties to the litigation, the members of this Court, and legislators used this shorthand—”a specified period of weeks”—to describe their understanding of when the prohibition on abortion in both Acts begins.

Now that we squarely addressed the definition of “fetal heartbeat” in the 2023 Act, our interpretation of the term is not based on an assessment of the number of weeks a woman has been pregnant. Instead, it is based on medically and objectively observable evidence that a medical professional may identify. Tracking the language of the 2023 Act, we held the term “fetal heartbeat” refers to “a biologically identifiable moment in time,” which a medical professional may objectively determine to have occurred by the existence of the “cardiac activity” of electrical impulses detectable as a “sound” with diagnostic medical technology such as a transvaginal ultrasound device. Under the 2023 Act, this cardiac activity marks the point beyond which most abortions may not be carried out when the medical professional observes it as a “steady and repetitive rhythmic contraction of the fetal heart” during any stage of the heart’s development “within the gestational sac.” While we do not frame our holding in the shorthand terms of a number of weeks, the biologically identifiable moment in time we held is the “fetal heartbeat” under the 2023 Act occurs in most instances at approximately six weeks of pregnancy.

Planned Parenthood filed this action against the State and others in circuit court seeking “a declaratory judgment . . . that, consistent with the plain language of the Act: (1) ‘cardiac activity’ is modified by ‘the steady and repetitive rhythmic contraction of the fetal heart’ such that the two phrases refer to one point in time during pregnancy, and (2) the relevant point in time addressed by the Act is the point when a heart has formed, which is after approximately nine weeks.” Both parties submitted affidavits or reports from medical experts describing contrary views of the purported “medical consensus” regarding the definition of “fetal heartbeat.” The circuit court ruled for the State, and Planned Parenthood appealed.

The 2023 General Assembly heard the Court’s discussion of a six-week ban at oral argument in Planned Parenthood I, read what the Court wrote in Planned Parenthood I about the 2021 Act being a six-week ban, consistently and exclusively mentioned the Court’s analysis in Planned Parenthood I as turning on the six-week time frame, turned right around and included the exact same definition of “fetal heartbeat” in the 2023 Act, and then consistently and exclusively discussed the 2023 Act as a six-week ban, all without so much as a passing comment about whether the Court misunderstood the Act—together conclusively demonstrate that the General Assembly did not intend to ban abortions at the point in time Planned Parenthood now argued.

Based on our interpretation of the statutory definition of “fetal heartbeat,” we held the 2023 Act bans abortion—unless an exception applies—when electrical impulses are first detectable as a “sound” with diagnostic medical technology such as a transvaginal ultrasound device and the medical professional observes those electrical impulses as a “steady and repetitive rhythmic contraction of the fetal heart” during any stage of the heart’s development “within the gestational sac.”

Affirmed.

Planned Parenthood South Atlantic v. State of South Carolina (Lawyers’ Weekly No. 010-029-25, 27 pp.) (John C. Few, J.) Appealed from Richland County Circuit Court (Daniel Coble, J.) Catherine Peyton Humphreville and Kyla Eastling, of New York, NY; Kathleen McColl McDaniel, M. Malissa Burnette, and Grant Burnette LeFever, of Burnette Shutt & McDaniel, PA, of Columbia, all for Appellants; Attorney General Alan McCrory Wilson, of Columbia, for Respondent State of South Carolina; Solicitor General Robert D. Cook, Deputy Solicitor General J. Emory Smith Jr., Assistant Deputy Solicitor General Thomas Tyler Hydrick, and Assistant Deputy Solicitor General Joseph David Spate, all of Columbia, for Respondents State of South Carolina and Attorney General Alan McCrory Wilson; William Donald Britt Jr., Jenny Rebecca Pittman, and Ashley Caroline Biggers, all of S.C. Department of Public Health, of Columbia, for Respondent Edward Simmer; Erin G. Baldwin and Robert E. Horner, both of Columbia, for Respondents Anne G. Cook, Stephen I. Schabel, George S. Dilts, Dion Franga, Richard Howell, Robert Kosciusko, Theresa Mills-Floyd, Jennifer R. Root, Christopher C. Wright, Samuel H. McNutt, Sallie Beth Todd, Tamara Day, Kelli Garber, Lindsey K. Mitcham, Rebecca Morrison, Kay Swisher, and Robert J. Wolff; Robert David Garfield and Steven R. Spreeuwers, of Garfield Spreeuwers Law Group, of Columbia, for Respondent Byron E. Gipson. Chief Legal Counsel Thomas Ashley Limehouse Jr., Senior Litigation Counsel William Grayson Lambert, Deputy Legal Counsel Erica Wells Shedd, Deputy Legal Counsel Tyra S. McBride, all of the Office of the Governor, of Columbia, for Intervenor-Defendant Henry D. McMaster as Governor of the State of South Carolina. David Allen Chaney, Jr., of Columbia, and Bridget E. Lavender, of New York, NY, both as Amicus Curiae for American Civil Liberties Union. Harmon L. Cooper, of Washington, DC, Amicus Curiae for Women’s Rights and Empowerment Network. South Carolina Supreme Court