COLUMBIA – As South Carolina continues to enforce an extreme and dangerous ban on most abortions, the American Civil Liberties Union and the ACLU of South Carolina have submitted a brief to the State Supreme Court insisting on a straightforward reading of the text of the law.
“In service of their unpopular anti-abortion policy goals, the Governor and Attorney General ask the Supreme Court to throw out its common-sense and text-based approach to statutory interpretation and rewrite the Fetal Heartbeat Act,” said Allen Chaney, Legal Director of the ACLU of South Carolina. “Not only does the State's argument defy every known definition of the word ‘fetus’ to conclude that doctors can detect a ‘fetal heartbeat’ from a 4- to 6-week-old embryo, but it also threatens longstanding precedent meant to ensure that the public has fair notice of what conduct is prohibited under the law."
In the ongoing case Planned Parenthood South Atlantic v. Wilson, state officials including Attorney General Alan Wilson and Governor Henry McMaster have argued that the 2023 Fetal Heartbeat Act forbids most abortions beyond 6 weeks after a pregnant person’s last menstrual period.
The ACLU of South Carolina is not a party to the case, but in an amicus curiae (“friend of the court”) brief filed October 3, the ACLU and ACLU-SC ask the state’s highest court to follow its own precedent and base any judgments on a plain reading of the law’s text.
If the State Legislature had wanted to ban abortion after 6 weeks, it could have simply written “6 weeks” into the text of the law. Instead, lawmakers wrote a law that hinges on the detection of a “fetal heartbeat.” The meaning of the law depends on the meaning of the word “fetus.” Every available medical or dictionary definition says that what exists 6 weeks after a person’s last menstrual period is not a fetus, but an embryo.
In addition to seeking to protect South Carolinians’ access to reproductive healthcare, the ACLU of South Carolina seeks to remind the Court that the meaning of laws should be clear to ordinary people. While the governor and attorney general are relying on news media summaries and “a freewheeling extratextual search for their preferred policy outcome,” the brief argues that the Court should stick to the precedent it affirmed as recently as last month’s rejection of private school vouchers in Eidson v. South Carolina Department of Education (2024), in which the majority wrote:
“[I]n considering the meaning of a text, a court should not consider materials outside the text unless the text is ambiguous.”
People cannot be reasonably expected to obey a law if they must dig around in legislative archives to understand the lawmakers’ intent. Subjecting South Carolinians to criminal charges and imprisonment for conduct that is permissible under a plain reading of the law violates the Due Process protections of the U.S. and South Carolina Constitutions.
