Planned Parenthood loses legal challenge to South Carolina’s ‘fetal heartbeat’ definition

5/7/2024: Planned Parenthood South Atlantic and the state of South Carolina were in court last week arguing a lawsuit over the state’s Fetal Heartbeat and Protection from Abortion Act and its definition of a “fetal heartbeat.”

The lawsuit, filed by Planned Parenthood and Taylor Shelton, a South Carolina woman, is asking Circuit Judge Daniel Coble to interpret the law’s definition of “fetal heartbeat” to mean the formation status of the heart at nine weeks post-fertilization, rather than six, and to block the law until a ruling is issued.

The South Carolina law states that “fetal heartbeat means cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.” It also says, “Cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac.”

It continues, “An abortion provider who is to perform or induce an abortion, a certified technician, or another agent of the abortion provider who is competent in ultrasonography shall: (1) perform an obstetric ultrasound on the pregnant woman, using whichever method the physician and pregnant woman agree is best under the circumstances; (2) during the performance of the ultrasound, display the ultrasound images so that the pregnant woman may view the images;  and (3) record a written medical description of the ultrasound images of the unborn child’s fetal heartbeat, if present and viewable.”

When does the heart begin to beat?

Planned Parenthood argued that the law’s use of the terminologies “fetal heartbeat,” “formed,” and “repetitive rhythmic contraction” suggests that it is referencing both a moment when the major structures of the heart are present and when the preborn child moves from the embryonic stage to the fetal stage.

Planned Parenthood attorney Kyla Eastling told the court that minor differences in punctuation between South Carolina’s law and other similar state laws means the South Carolina law doesn’t prohibit abortion until the chambers and valves of the heart come together. “To put it simply, you can’t have a heartbeat before you have a heart,” she said.

But this is a misleading claim.

While the Endowment for Human Development explains (and other research concurs) that all four chambers of the heart are present at six weeks and six days post-fertilization (or eight weeks and six days gestation) — and at nine weeks, the preborn child is now considered a fetus — the heart is present and pumping blood well before that.

The human heart first begins to beat about 22 days post-fertilization, and this is typically detectable around six weeks gestation (four weeks after fertilization) by ultrasound. Though the heart does not yet have four chambers at this point, it is pumping blood throughout the embryo. Despite claims from the abortion industry that embryos don’t have heart “beats” but instead have “pulses,” the truth is that the heart is the very first organ to form because it is the organ that allows the embryo to grow and develop.

Dr. Mobeen Syed explained, “[The] heart is the very first organ that starts developing and it is the first organ that reaches a functional state. Can you imagine that the heart reaches a functional state even before its own development completes? When the heart is in the form of a tube, even then it is pulsating and it is beating and it is pumping blood.” (emphasis added)

Who is Taylor Shelton?

Planned Parenthood’s co-plaintiff is a South Carolina woman who claims she was denied an abortion in the state and had to travel to North Carolina to kill her preborn baby. Shelton had been using an IUD birth control device but it had bent and was causing pain — which can happen with IUDs. But two days after missing her period, she learned she was pregnant. Shelton told the court that because of the law, she had about 12 days to get an abortion but faced challenges.

In her declaration to the court, she wrote:

I was able to get an appointment at a pregnancy center in Charlotte, North Carolina a few days later. When making the appointment, I made sure the receptionist knew that I had an IUD and that I wanted to terminate my pregnancy. I understood that they did not provide abortions, but I was under the impression that they could provide me with an ultrasound, and thus, a referral.

… as soon as I stepped foot in the pregnancy center, I knew something was off.

After taking a pregnancy test, a woman began to counsel me. Although I made my position clear when speaking to the receptionist on the phone before making the appointment, the ‘counselor’ was unaware that I wanted an abortion. Once she knew this information, she claimed that they could no longer help me.

Further, the ‘counselor’ was unaware of my IUD, and upon learning this information, she claimed that I needed to go to the hospital because my ‘baby’ was in danger due to the possibility of an ectopic pregnancy. I later learned that this establishment was an anti-abortion center.

Upon leaving abruptly, I felt I had been both misled and mistreated, and even more frustrated than I was before.

First of all, if a woman visiting a pregnancy center is determined to get an abortion, pregnancy centers give information about the procedures but do not refer for them — so in that sense, a pregnancy center is most definitely limited in that it “c[an] no longer help” a woman who has decided against choosing life and instead wants an abortion, if the “help” that is sought is a referral for an abortion.

However, medical pregnancy centers can often provide women with an ultrasound for free, if they choose to get one, so that they have the opportunity to see their baby and hear the baby’s heartbeat. It would make little sense for a medical pregnancy center to refuse to show an abortion-minded woman an ultrasound of her baby, since they know that many women change their minds upon viewing an ultrasound of their child. However, if the pregnancy center in some way refused to provide an ultrasound (which her testimony does not specify), perhaps there was another reason.

Ultrasound Care explained that at four weeks [gestation], meaning two weeks after fertilization, “an ultrasound of your uterus will only show what looks like a tiny dot called the gestational sac, and will not show a [baby] until it is further advanced. Your pregnancy needs to be at least 5 weeks [gestation] for it to be seen with even the most advanced transvaginal ultrasound equipment and the most experienced sonographer operating the equipment” (emphasis added). If she was truly four weeks along, Shelton would have needed a transvaginal ultrasound, which the PRC may not have had. She also would have needed “the most experienced sonographer” — which the PRC also may not have had; sonographers that aid pregnancy centers often do so on a volunteer basis and may not be at the facility during all operating hours.

In addition, Shelton had an IUD, which can certainly complicate matters, and the pregnancy center advised her to have the ultrasound at the hospital where she could receive ectopic pregnancy care if she needed it.

Shelton claims she then asked her doctor for an abortion at about five weeks, but said her doctor refused to commit one because of the state’s law. She said, “Even though I use contraception, and tested as early as I could, and called as quickly as I could, there still wasn’t enough time for me to get an abortion and it is not enough time for the vast majority of South Carolinians.”

The following week, she traveled twice to North Carolina — once for an ultrasound at one Planned Parenthood and then a few days later for the actual abortion at a different Planned Parenthood.

Below is a video of a preborn baby’s heartbeat at four weeks and four days past fertilization (six weeks gestation), while the heart still has just two chambers. It has been beating since three weeks and one day (22 days) after fertilization: