Case: Planned Parenthood South Atlantic v. South Carolina

On May 25, 2023, Planned Parenthood Federation of America filed suit along with the Center for Reproductive Rights and private counsel against the state of South Carolina to challenge the state's six-week abortion ban, the Fetal Heartbeat and Protection from Abortion Act (S. 474). The lawsuit was filed in the Court of Common Pleas for the Fifth Judicial Circuit (state trial court) on behalf of Planned Parenthood South Atlantic, Greenville Women's Clinic, and two physicians who provide abortions in the state of South Carolina.

S. 474 contained limited exceptions for the life and physical health of the pregnant person and for cases of a fetal diagnosis “incompatible” with life. Under the new six-week abortion ban, survivors of rape and incest could only access care until 12 weeks of pregnancy and only if their physician reported the assault — and the survivor’s name — to law enforcement, regardless of the survivor’s wishes. The plaintiffs asked the court to declare invalid and enjoin S. 474 on the grounds that it violated South Carolinians’ constitutional rights to privacy, equal protection, and substantive due process. S. 474 was virtually identical to the state's former six-week abortion ban, which was struck down by the South Carolina Supreme Court on January 5, 2023 in Planned Parenthood I.

One day after the lawsuit was filed, Judge Clifton Newman preliminarily enjoined enforcement of S. 474. He found that if S. 474 were to remain in effect, many pregnant people in South Carolina would be irreparably harmed and unable to access abortion care. Based on the outcome of Planned Parenthood I, Judge Newman also concluded that the plaintiffs had a sufficient likelihood of success and that the status quo under that recent state Supreme Court decision should remain unaffected while this case was resolved.

The State subsequently filed an emergency petition with the South Carolina Supreme Court asking it to supersede the injunction issued by the circuit court and to accept jurisdiction of the case for resolution. On June 6, 2023, the South Carolina Supreme Court declined to lift the injunction, but it agreed to hear the case and scheduled oral arguments for June 27, 2023. 

On August 23, 2023, the South Carolina Supreme Court vacated the preliminary injunction and declared S. 474 to be constitutional. The court rejected the argument that the S. 474 was essentially the same as the previous stricken Act. It found that the 2023 Act was distinct from the unconstitutional 2021 Act, because the prohibition against abortion was centered around the detection of a fetal heartbeat, instead of being based on an arbitrary amount of weeks into a pregnancy. S. 474 also provided limited exceptions that would allow abortions in the event of health risks of the mother, fatal fetal anomalies, rape, and incest. The court found that the South Carolina General Assembly had carefully crafted S. 474 in response to the court's previous ruling and remedied the constitutional defects in the previous abortion statute. The court recognized that statutes are automatically entitled to legislative deference and presumed constitutional, unless they are determined to be arbitrary as a matter of law. The South Carolina legislature was free to overrule the court's decision on the 2021 Act by enacting new statutes, such as S. 474. The new Act better balanced the competing interests between the mother and the unborn child, by focusing on contraceptives and early pregnancy testing, as well as repealing the previous trimester framework. The court reiterated that the state constitution never enshrined the right to an abortion. Moreover, citizens' right to privacy from the state was qualified by the constitution only prohibiting "unreasonable invasions of privacy." Policy determinations were the domain of the legislature, not the court, and as a matter of law, the balance of policy considerations struck by the legislature was sufficiently reasonable in weighing the state's interest in protecting unborn lives with expecting mothers' privacy concerns. The state's interest would only become actionable upon the detection of a fetal heartbeat via ultrasound by a qualified medical personnel. 892 S.E.2d 121.

In Planned Parenthood III, a subsequent lawsuit filed by Planned Parenthood on September 14, 2023, the state Supreme Court declined original jurisdiction to decide the unclear meaning of “fetal heartbeat” and the point in pregnancy at which the ban applies.

The case is now closed.