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South Carolina’s Six-Week Abortion Law Invalid, Lawsuit Says (1)

July 14, 2022, 1:52 PMUpdated: July 14, 2022, 2:45 PM

Two abortion provides sued South Carolina in state court seeking a declaration that a law banning abortions after about six weeks violates the state’s constitution.

This is the latest in a series of lawsuits that have been filed to stop abortion restrictions under state constitutions after the US Supreme Court declared on June 24 that there’s no federal constitutional right to abortion. Providers have won temporary orders blocking the laws in several states, including Louisiana, Ohio, and Kentucky.

Planned Parenthood South Atlantic, Greenville Women’s Clinic, and two doctors sued Wednesday in the South Carolina Court of Common Pleas for the Fifth Judicial Circuit. They argue that a law known as SB 1, which includes a ban on terminating a pregnancy once embryonic or fetal cardiac activity is detected, violates the South Carolina Constitution’s privacy, equal protection, and due process protections.

Such cardiac activity may be detected by ultrasound as early as six weeks into a pregnancy, and sometimes sooner, the providers say.

A spokesman for S.C. Attorney General Alan Wilson (R) told Bloomberg Law the lawsuit was expected and that his office is “prepared to defend the state’s laws.”

A federal court previously blocked the law’s enforcement, but that case was stayed pending the outcome of the Supreme Court case, Dobbs v. Jackson Women’s Health Organization. The law was revived June 27, on an emergency motion by Gov. Henry McMaster (R) that allowed the ban to take effect, the providers say.

The current complaint alleges that the South Carolina Constitution includes an express right to be free from unreasonable invasions of privacy, the providers say. The state’s top court, moreover, has recognized that this includes the right to make choices about medical care and preserves bodily autonomy, they say.

The rights to medical and self-determination include the right to abortion, the complaint says.

By treating pregnant people who choose to end pregnancies differently from people who choose to continue pregnancies, the law violates the state constitution’s equal protection clause, the complaint says. The law’s gender-based classifications also violate that provision, it says.

SB 1 also violates people’s state constitutional substantive due process rights by depriving them of their individual liberty interests in making decisions about whether to continue a pregnancy, the providers say.

The providers also challenged SB 1’s narrow exceptions. The law allows abortions to save the mother’s life and in cases of rape, but requires doctors to report the rape, thereby violating constitutional privacy protections, they say.

The complaint asks the court to declare SB 1 invalid and void for vagueness; to issue temporary, preliminary, and permanent orders blocking its enforcement; and to award the providers costs and attorneys’ fees.

Planned Parenthood Federation of America, the Center for Reproductive Rights, and Burnette Shutt & McDaniel PA represent the providers.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

The case is Planned Parenthood S. Atl. v. S.C., S.C. Ct. Com. Pl., No. unavailable, complaint filed 7/13/22.

(Updated with new fifth paragraph added to reflect S.C. attorney general's comment.)

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Brian Flood at bflood@bloomberglaw.com