SPARTANBURG, S.C. (WSPA) — A ban on abortions after six weeks could be only days away from taking effect in South Carolina after the U.S. Supreme Court overturned Roe vs. Wade with a decision Friday, effectively removing the prior federal injunction that prohibited enforcement of the law.

After the ruling, South Carolina Gov. Henry McMaster filed a motion to remove the federal injunction that had kept the Fetal Heartbeat Protection From Abortion Act from becoming law in the state.

South Carolina law currently allows abortion procedures up to 28 weeks after pregnancy, essentially during the second trimester.

The Fetal Heartbeat Act,” signed into law by Gov. Henry McMaster last February, would prohibit abortions after approximately six weeks.

The law had been challenged successfully in federal court based on the argument that six weeks, in some cases, would not allow enough time for a woman to even be aware she was pregnant.

The six-week time frame in the Fetal Heartbeat Act is just an estimate of the time a woman has to decide to terminate a pregnancy in the state. The law states that “no person shall perform, induce, or attempt to perform or induce an abortion on a pregnant woman before a physician determines whether the human fetus the pregnant woman is carrying has a detectable fetal heartbeat.”

It would become a felony for a physician to perform an abortion if a heartbeat is detected in most circumstances. Anyone performing an abortion in violation of the law could spend up to two years in jail and be fined $10,000.

“Once a fetal heartbeat can be detected by doctors. [The Fetal Heartbeat Act] does have exceptions for things like rape and incest. But for the most part, after six weeks, abortions would no longer be legal in this state,” said Kirk Randazzo, professor of political science and chair of the Department of Political Science at the University of South Carolina.

The preliminary injunction from the Fourth Circuit Court of Appeals that blocked the Fetal Heartbeat Act could be lifted in the next few days. 

“Once that legal notice comes in, lifting the injunction, then the enforcement of that Fetal Heartbeat Bill will begin right away,” Randazzo said.

Timeline of events

Feb. 18, 2021 Gov. Henry McMaster signs Fetal Heartbeat Bill
Feb. 18, 2021Planned Parenthood South Atlantic and Greenville Women’s Clinic, along with co-owner and obstetrician-gynecologist Doctor Terry L. Buffkin, representing his patients, file a lawsuit.
Feb. 19, 2021The federal district court for South Carolina issues a temporary restraining order against the law, claiming it was unconstitutional.
March 19, 2021The federal district court for South Carolina issues a preliminary injunction order that has kept the law from taking effect.
July 7, 2021Gov. McMaster and other defendants appeal the federal district court’s preliminary injunction of the South Carolina Fetal Heartbeat Act
Feb. 23, 2022The Fourth Circuit Court of Appeals unanimously upholds the lower court ruling, blocking the enforcement of South Carolina’s Fetal Heartbeat Act.
June 24, 2022U.S. Supreme Court decision overturns Roe v. Wade, removing the federal jurisdiction over the law
June 24, 2022Gov. McMaster files for the removal of the preliminary injunction issued by the Fourth Circuit Court of Appeals.

On the same day that Gov. McMaster signed the Fetal Heartbeat Bill, a group consisting of Planned Parenthood South Atlantic, and Greenville Women’s Clinic filed a lawsuit in federal court to stop the law from taking effect.

Planned Parenthood South Atlantic and Greenville Women’s Clinic operate the only three abortion clinics in South Carolina.

Last year, the federal district court for South Carolina granted a temporary ban on the law taking effect. That decision was appealed by the state, but the injunction was upheld by the Fourth Circuit Court of Appeals.

In its ruling overturning Roe vs. Wade, the Supreme Court has essentially said there is no constitutional right to an abortion, according to Randazzo.

The next step is either the injunction is lifted by the appeals court itself or maybe [the appeals court] will remand this back to the district court judge, but one of those two courts will issue a legal ruling lifting the injunction, according to Randazzo.

A woman’s right to choose – most of the time

The organizations that applied for the injunction against the Fetal Heartbeat Act argued that “patients do not know they are pregnant until at or after six weeks, especially patients who have irregular menstrual cycles or who experience bleeding during early pregnancy, a common occurrence that is frequently and easily mistaken for a period. Other patients may not develop or recognize symptoms of early pregnancy.”

This could result in some women not knowing they are pregnant until after the deadline for abortions in the state has passed, under the new law. In these circumstances, abortion would be effectively illegal for women who discover they are pregnant late.

The Fetal Heartbeat Act requires doctors to perform an ultrasound on patients seeking an abortion. If a heartbeat is detected, an abortion becomes illegal.

Constitutional rights in question

Previous bills introduced in the state legislature attempted to ban abortion completely, but were not passed by lawmakers, Randazzo said.

“But given the Supreme Court decision today, there’s a distinct possibility that those bills will get reintroduced next year because there’s likely to be some additional momentum for further restrictions,” he said.

“There are two points that I think are of most interest and potential concern. One is that the Supreme Court generally has acted in order to create a uniform playing field across the country, and today’s decision really countermands that because the decision says it’s now up to the states, which means we will now have a patchwork quilt set of laws. There be 50 different statutes that people will have to abide by,” he said.

This is the first significant retraction of constitutional rights that we have ever seen in the United States, he said.

“[The U.S. Supreme Court ruling] says because abortion is not explicitly written into the Constitution nor is it a right deeply rooted in our nation’s history, it had to be overturned,” he said.

“The question then becomes how does one define what is deeply rooted in the nation’s history? Arguably, any of the rights that people have been given by the Supreme Court after World War Two, including all the different aspects centered on the right to privacy, of which abortion was one, are now potentially questionable,” Randazzo said.

“I think that’s going to open up the door for a tremendous number of additional lawsuits that are going to try and clarify what that phrase ‘deeply rooted’ in the nation’s history actually means,” he said.