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In 2023, South Carolina adopted an abortion ban that applies upon the detection of a 鈥渇etal heartbeat." Within the Act, 鈥渇etal heartbeat鈥� is defined to mean 鈥渃ardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.鈥� S.C. Code 搂 44-41-610(6). The ban imposes felony criminal penalties on healthcare providers who 鈥減erform or induce鈥� abortions that are prohibited by the Act.

After losing an earlier constitutional challenge to the 2023 Act, Planned Parenthood initiated this case, arguing, as a matter of statutory interpretation, that the Act's prohibition cannot be applied until a pregnancy involves a fetus (and a 鈥渇etal heart鈥�), rather than an embryo, a transition that occurs after approximately nine weeks of pregnancy, as dated from a patient's last menstrual period (LMP). The state argued that the ban applies starting at approximately six weeks of pregnancy LMP, urging the Court to abandon the plain text of the statute and interpret the statute according to the purported intent of the General Assembly. The Circuit Court agreed with the state.

In a Supreme Court appeal, the ACLU, alongside the ACLU of South Carolina, filed an amicus brief arguing that the court should reject the state's position as to the timing of the ban's application and apply the plain meaning of the Act, which would allow abortions in South Carolina through approximately nine weeks of pregnancy.

Our brief argues that the state鈥檚 position is at odds with clear statutory text and improperly rests on extratextual evidence to expand criminal liability, thus implicating due process concerns. Additionally, we explain why the state wrongly invokes the arguments of Planned Parenthood鈥檚 counsel in earlier proceedings as evidence that the Act imposes a six-week ban.