(Getty Images)
CHARLESTON — Exceptions in South Carolina’s abortion ban are too vague and infringe on physicians’ religious beliefs, a group of doctors is claiming in a federal lawsuit.
Under the state’s so-called “fetal heartbeat” law passed in 2023, doctors can’t terminate a pregnancy after an ultrasound detects the sound of cardiac activity, with limited exceptions. It’s been upheld as a six-week ban, though the law itself does not specify the week of pregnancy.
The lawsuit comes a month before the state Supreme Court is scheduled to hear arguments on a separate lawsuit from Planned Parenthood as to whether the law’s definition should allow abortions through the ninth week.
The five doctors who filed a lawsuit Wednesday in Charleston are asking a federal court to stop the state from enforcing the law or at least require law enforcement to defer to a woman’s doctors in cases of abortions for health reasons, the lawsuit reads.
The state Attorney General’s Office has not yet filed a response.
Under the law, doctors are allowed to perform abortions if they’re needed to save the life or health of the mother or if the fetal anomaly is so severe, the fetus isn’t expected to live after birth. In cases of rape or incest, the woman can get an abortion up to 12 weeks’ gestation, if she allows the crime to be reported to law enforcement.
State high court schedules hearing on case that challenges timing of SC’s abortion ban
Doctors who question whether they can guarantee a mother’s in enough danger or is the fetal anomaly is sufficiently fatal may do nothing out of fear of violating the law, the lawsuit claims.
The punishment for performing an illegal abortion is up to two years in prison, a fine of up to $10,000 and the possibility of losing a medical license.
Republican legislators insisted when they passed the law that they intentionally allowed room for doctors to determine what constitutes a medical emergency.
“‘Medical emergency’ means in reasonable medical judgment, a condition exists that has complicated the pregnant woman’s medical condition and necessitates an abortion to prevent death or serious risk of a substantial and irreversible physical impairment of a major bodily function,” the law reads.
It goes on to specify that an abortion is not illegal if “the physician determines according to standard medical practice that a medical emergency exists.”
But the lawsuit says that hasn’t eased concerns at all.
“Because these exceptions are so vague, when (doctors) do provide abortion care to such patients, they are frequently consumed with fear of criminal prosecution, incarceration, and the loss of their livelihood,” reads the lawsuit.
In a flip of the religious exemption in state law, the lawsuit says the ban discriminates against doctors who believe abortions are fundamental to their religious beliefs.
What state law has long protected is doctors and other health care workers’ ability to refuse to perform or assist with an abortion due to their beliefs.
Four of the OB-GYNs who filed the lawsuit are Christians of various denominations, including a Presbyterian, a Lutheran and a doctor raised with both Methodist and Catholic backgrounds.
One did not give a specific religious affiliation but “believes as a matter of conscience that the measure of a person’s virtue is how they treat others,” the lawsuit reads.
The exceptions “often prevent (doctors) from providing abortion care to very ill, grieving, or traumatized patients contrary to their deeply held religious and conscientious beliefs in respecting everyone’s dignity, alleviating others’ suffering, and placing others before themselves,” the lawsuit reads.
SC abortion law can stand at 6 weeks of pregnancy, judge rules
Often, the doctors or their hospitals’ attorneys have to make a judgment call as to whether an abortion is covered under an exception or not, the lawsuit argues.
Questions left for them to determine is whether a doctor can prescribe treatments that might endanger the life of the fetus but save the mother, such as using chemotherapy to treat a pregnant woman’s cancer, the lawsuit claims.
Doctors scared of going to prison or losing their licenses often err on the side of caution, delaying or denying care to pregnant women, the lawsuit reads.
“This forces (doctors) to send their patients the messages that they do not matter, their decision to end their pregnancy is wrong, and they are on their own,” the lawsuit reads. “It condemns the patients to growing sicker and sicker and possibly losing their lives. Or it relegates them to a costly and complicated trip in that condition that deprives them of the support of family and friends.”
For instance, when a patient came to Dr. Patricia Seal in Columbia, one of the doctors suing, to end her “much-desired pregnancy” because it was worsening her kidney disease, Seal’s hospital refused to approve an abortion until the woman was close to needing dialysis, according to the lawsuit.
Because of the delay, the woman’s condition worsened to the point that she might need a kidney transplant, the lawsuit claims.
Also unclear is what constitutes a fetal anomaly as “incompatible with sustaining life after birth,” the doctors argue.
“Are a few minutes enough? Weeks? Months?” the lawsuit reads. “Further, how certain must a physician be about this time period? Reasonably sure? Very sure? Certain?”
Those factors can be difficult to determine. Doctors struggle with whether that means a fetus has zero chance of survival after birth, or whether that chance is just very low, the doctors argued.
Seal had to turn away another patient whose fetus had a rare genetic disorder that causes defects in the brain, heart and lung. The disorder’s survival rate past the age of 1 is less than a 10%. Seal couldn’t determine whether that counted as “sustaining life,” according to the lawsuit.
“As a consequence, the patient remained pregnant against her will until she could leave South Carolina, tormented by the thought that her child was in anguish,” the lawsuit reads. “And this tormented Dr. Seal, who felt she was harming her patient in defiance of the Hippocratic Oath.”