South Carolina's “Heartbeat” Lawsuit

When you do everything 'right' and still get denied care

I told you last night about a new lawsuit in South Carolina that’s seeking to clarify when a ‘fetal heartbeat’ really exists. It’s an important case, so I wanted to make sure you have more info than just the top-line news:

Taylor Shelton filed a suit against the state this week, along with Planned Parenthood South Atlantic, after being denied an abortion a few days past her 6th week of pregnancy. Right now, the state ‘heartbeat’ ban prevents doctors from providing abortions after about 6 weeks—even though there isn’t a heart, let alone a heartbeat, that early in pregnancy.

This isn’t the first time that abortion providers have brought a suit like this in South Carolina. Doctors sued late last year over the definition of ‘fetal heartbeat’, asking the Court to allow abortion until the 9th week of pregnancy. (That’s when most of the primary parts of the eventual heart have formed.)

The all-male South Carolina Supreme Court declined to take up the case.

At the time, I remember feeling not terrific about the idea that pro-choice groups were fighting for such incremental change, but a representative from Planned Parenthood South Atlantic made this vital point: The difference between a 6-week ban and a 9-week ban is the difference between doctors turning away half of their patients or 90% of them.

So now Planned Parenthood is suing again, and there’s something especially important about the case they’re bringing forward with Shelton: This is a woman who did everything “right” and was still unable to get and abortion. Now, you know I don’t believe in “right” or “wrong” when it comes to who deserves care. But I have to mention this, because it’s central to how Republicans got this ban enacted in the first place.

Background

Before the current 6-week ban went into effect, the South Carolina Supreme Court had struck down a similar ban—in part because justices said that 6 weeks wasn’t enough time for a person to make a decision about their pregnancy. Soon after that decision, the sole female justice on the Court—who wrote the majority opinion striking down the ban—retired. Once she was off the bench, Republicans worked quickly to get another ban in front of the Court, this time claiming that they changed the language of the bill to be constitutional.

In an attempt to get around the previous block, state attorney Thomas Hydrick argued that the new ban prohibited abortion after “cardiac activity” is detected, not after 6 weeks. Hydrick also claimed that because pregnancy tests might work as soon as ten days after conception, it’s women’s responsibility to find out if they’re pregnant as early as possible: “There is a distinction legally between do women know, and can women know?”

Justices liked the idea that women have a responsibility to know about their pregnancy and take early action. Justice John Few, said, “I think it's a valid notion that the state, as part of its policy judgment can say, we want you to start thinking about your choices early.”

In short: a huge part of how Republicans enacted this ban was by claiming women have plenty of time and ability to find out they’re pregnant and get an abortion before ‘cardiac activity’ happens. That brings us back to Shelton, who did all of the “right” and “good” things that Republicans wanted her to do.

If the ‘perfect’ patient can’t get an abortion, who can?

Shelton was in a monogamous relationship, she tracked her period, had an IUD, and took a pregnancy test the first day after her missed period. According to the suit, she started calling abortion clinics the next morning—but because of waiting periods at South Carolina clinics, Shelton couldn’t get an appointment before the 6 week cut-off.

When she researched getting an abortion in nearby North Carolina, Shelton realized she’d need to make two separate trips for care—one for an ultrasound, and another for an abortion—at least 72 hours apart. So she made an appointment at a North Carolina pregnancy center to get an ultrasound, driving four hours to get there—but the center was an anti-abortion group. Staff shamed and scared Shelton, telling her that she had to go to the emergency room because having an IUD would cause an ectopic pregnancy. (Sigh.)

So Shelton went back to South Carolina to see her doctor, confirmed that she didn’t have an ectopic pregnancy, and had her IUD removed. Then she got an appointment at a North Carolina Planned Parenthood for the following week, driving four hours to get there to get another ultrasound. A few days later she had to drive to a different Planned Parenthood in North Carolina to get her abortion.

At that point, Shelton was about six weeks and four days pregnant. In all, she had been denied care in her home state, made three trips to North Carolina, gotten harassed and lied to by a crisis pregnancy center, and been forced to get an abortion far from home. From the suit:

“I felt completely unsupported and disoriented by the medical system throughout the roughly two weeks between when I found out I was pregnant and had an abortion. I felt uneasy, confused, and scared throughout the process and like I did not have the resources to ask the right questions.

I also felt like I was doing something against the law, even though I know that I learned I was pregnant before the legal limit in South Carolina and even though I know it is legal to travel to get an abortion out of state. Even though I made the decision to get an abortion quickly and confidently, I was still faced with total apprehension. I feel that I was neglected by our healthcare system and that I endured unnecessary and unfair hardship.”

Despite all this, Shelton says she feels “fortunate” that she was able to get care, and that she had the time and financial ability to travel to obtain an abortion. She knows not everyone is so lucky.

Remember: Shelton was the ideal patient, doing everything Republicans dictated a ‘responsible’ woman should do. If she couldn’t get an abortion, who can? We know what the answer is, obviously. The point of South Carolina’s abortion ban was always to make it impossible for anyone to get care—no matter what they do. The Post & Courier reports that since the ban was passed, Planned Parenthood has provided 83% fewer abortions.

I’ll be watching this case carefully—not only because of what it could mean for the definition of ‘fetal heartbeat’ in South Carolina (which is fraught for all sorts of reasons) but because it puts Republican hypocrisy on full display.

To donate to abortion funds in South Carolina click here; and here for Planned Parenthood South Atlantic.