South Carolina’s Fetal Heartbeat Law Following Dobbs

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Following the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, the South Carolina Fetal Heartbeat Law (“Heartbeat Law”) went into effect on June 27, 2022. This alert summarizes the core provisions and requirements of the Heartbeat Law.

The Heartbeat Law was signed into law on February 18, 2021. In March 2021, the U.S. District Court for the District of South Carolina issued a preliminary injunction which stayed enforcement pending resolution of legal challenges. Following the Dobbs decision the District Court lifted the preliminary injunction, thus permitting enforcement beginning June 27, 2022.

Violations of the Heartbeat Law can result in a range of penalties, including imprisonment.

This alert only summarizes the core provisions and requirements of the Heartbeat Law. The Law also contains extensive notice and documentation requirements. Interested parties are encouraged to closely review the Law’s provisions.

As a general rule, providers must perform an ultrasound prior to the procedure to determine if a fetal heartbeat is detected. If a fetal heartbeat is detected, the Heartbeat Law prohibits an abortion unless an exception applies.

The Heartbeat Law includes several exceptions:

Medical Emergency: an abortion may be performed when a medical emergency exists. The Heartbeat Law defines a Medical Emergency as a “condition that, by any reasonable medical judgement, so complicates the medical condition of a pregnant woman that it necessitates the immediate abortion of her pregnancy to avert her death without first determining whether there is a detectable fetal heartbeat or for which the delay necessary to determine whether there is a detectable fetal heartbeat will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.”

Rape/Incest: The Heartbeat Law permits an abortion in the case of rape or incest up to twenty weeks post-fertilization. A physician must report the rape or incest allegation to the sheriff in the county where the abortion was performed no later than 24-hours after the abortion, and must inform the patient of the required notification prior to the abortion.

Fetal Anomaly: an abortion may be performed if, “in the reasonable medical judgment of the physician,” the “unborn child has a profound and irremediable congenital or chromosomal anomaly that, with or without the provision of life-preserving treatment, would be incompatible with sustaining life after birth.”

In addition to abortion-specific exceptions, the Heartbeat Law does not prevent a physician from performing a medical procedure that, by a reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent the serious risk of a substantial irreversible impairment of a major bodily function of the pregnant woman.

The Heartbeat Law is at https://www.scstatehouse.gov/sess124_2021-2022/bills/1.htm.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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