3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`(Columbia Division)
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`3:21-cv-00508-MGL
`Case No. ______________
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`PLANNED PARENTHOOD SOUTH
`ATLANTIC, on behalf of itself, its patients, and
`its physicians and staff;
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`GREENVILLE WOMEN’S CLINIC, on behalf
`of itself, its patients, and its physicians and staff;
`and
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`TERRY L. BUFFKIN, M.D., on behalf of
`himself and his patients.
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`Plaintiffs,
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`v.
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`ALAN WILSON, in his official capacity as
`Attorney General of South Carolina;
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`EDWARD SIMMER, in his official capacity as
`Director of the South Carolina Department of
`Health and Environmental Control;
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`ANNE G. COOK, in her official capacity as
`President of the South Carolina Board of Medical
`Examiners;
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`STEPHEN I. SCHABEL, in his official capacity
`as Vice President of the South Carolina Board of
`Medical Examiners;
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`RONALD JANUCHOWSKI, in his official
`capacity as Secretary of the South Carolina
`Board of Medical Examiners;
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`JIM C. CHOW, in his official capacity as a
`Member of the South Carolina Board of Medical
`Examiners;
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`GEORGE S. DILTS, in his official capacity as a
`Member of the South Carolina Board of Medical
`Examiners;
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`3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 2 of 19
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`DION FRANGA, in his official capacity as a
`Member of the South Carolina Board of Medical
`Examiners;
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`RICHARD HOWELL, in his official capacity as
`a Member of the South Carolina Board of
`Medical Examiners;
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`THERESA MILLS-FLOYD, in her official
`capacity as a Member of the South Carolina
`Board of Medical Examiners;
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`JEFFREY A. WALSH, in his official capacity as
`a Member of the South Carolina Board of
`Medical Examiners;
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`CHRISTOPHER C. WRIGHT, in his official
`capacity as a Member of the South Carolina
`Board of Medical Examiners;
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`SCARLETT A. WILSON, in her official
`capacity as Solicitor for South Carolina’s 9th
`Judicial Circuit;
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`BYRON E. GIPSON, in his official capacity as
`Solicitor for South Carolina’s 5th Judicial
`Circuit; and
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`WILLIAM WALTER WILKINS III, in his
`official capacity as Solicitor for South Carolina’s
`13th Judicial Circuit.
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`Defendants.
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`3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 3 of 19
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Plaintiffs bring this civil rights action under 42 U.S.C. § 1983 to challenge the
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`1.
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`constitutionality of Senate Bill 1 (hereinafter “SB 1” or “the Act”), South Carolina’s latest attempt
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`to prevent patients from exercising their constitutional right to abortion. See SB 1, attached as
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`Exhibit A, to be codified at S.C. Code Ann. §§ 44-41-610 et seq. South Carolina Governor Henry
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`McMaster has vowed to sign the Act immediately, at which point the Act will take immediate
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`effect and cause imminent harm to Plaintiffs and their patients.
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`2.
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`The Act bans abortion after the detection of fetal or embryonic cardiac activity,
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`which occurs as early as approximately six weeks of pregnancy, as dated from the first day of a
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`pregnant person’s last menstrual period (“LMP”). Because that point in pregnancy is roughly four
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`months before any fetus could be viable after birth, the Act prohibits Plaintiffs from providing
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`previability abortions to their South Carolina patients. A violation of the Act would carry felony
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`criminal penalties, the potential for adverse licensing action, and civil liability.
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`3.
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`The Act is an affront to the dignity and health of South Carolinians. In particular,
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`it is an attack on families with low incomes, South Carolinians of color, and rural South
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`Carolinians, who already face inequities in access to medical care and who will bear the brunt of
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`the law’s cruelties. South Carolinians face a critical shortage of reproductive health care providers,
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`including obstetrician-gynecologists, and the rate at which South Carolinians, particularly Black
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`South Carolinians, die from pregnancy-related causes is shockingly high.
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`4.
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`Rather than working to end these preventable deaths and honoring South
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`Carolinians’ reproductive health care decisions, the Legislature has instead chosen to criminalize
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`nearly all abortions. Its adoption of this law is in flagrant violation of nearly five decades of settled
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`Supreme Court precedent, starting with Roe v. Wade, 410 U.S. 113 (1973), which held that a
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`3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 4 of 19
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`patient has a constitutionally protected right to end a pregnancy prior to viability. Since Roe, no
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`court considering the constitutionality of a law that bans abortions beginning at a gestational age
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`prior to viability has upheld that law. To the contrary, decades of unanimous precedent have made
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`clear that a ban on such abortions violates the Fourteenth Amendment to the U.S. Constitution.
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`5.
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`Plaintiffs seek declaratory and injunctive relief preventing enforcement of SB 1 to
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`safeguard themselves, their patients, and physicians and other staff from this unconstitutional law.
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`JURISDICTION & VENUE
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`This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343.
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`Plaintiffs’ action for declaratory and injunctive relief is authorized by 28 U.S.C.
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`6.
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`7.
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`§§ 2201 and 2202; by Rules 57 and 65 of the Federal Rules of Civil Procedure; and by the general
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`legal and equitable powers of this Court.
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`8.
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`Venue in this district is proper under 28 U.S.C. § 1391 because the events giving
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`rise to this action occurred in the district, where each of the Plaintiffs provides previability abortion
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`services and where SB 1 would be enforced, and because all of the Defendants reside here.
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`9.
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`Under District of South Carolina Local Rule 3.01, this case should be assigned to
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`the Columbia Division because Defendants include the Attorney General, the Director of the
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`Department of Health and Environmental Control, and the Solicitor for South Carolina’s 5th
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`Judicial Circuit, all of whom maintain offices in the division. Assignment to the Columbia Division
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`is also proper because Plaintiff Planned Parenthood South Atlantic (“PPSAT”) operates a health
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`center in Columbia that provides abortions banned by SB 1 and serves abortion patients who reside
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`in the Columbia Division and whose constitutional rights are violated by the challenged law.
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`3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 5 of 19
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`A.
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`Plaintiffs
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`PARTIES
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`10.
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`Plaintiff PPSAT is a nonprofit corporation headquartered in North Carolina. It
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`provides a range of family planning and reproductive health services and other preventive care in
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`South Carolina, including well-person exams; contraception (including long-acting reversible
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`contraception or “LARCs”) and contraceptive counseling; gender-affirming hormone therapy as
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`well as menopausal hormone replacement therapy; screening for breast and cervical cancer;
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`screening and treatment for sexually transmitted infections (“STIs”); pregnancy testing and
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`counseling; physical exams; and abortion. PPSAT sues on its own behalf, on behalf of its patients,
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`and on behalf of its physicians and staff.
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`11.
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`Greenville Women’s Clinic, P.A. (“GWC”) is a health care facility in Greenville,
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`South Carolina, that since 1976 has provided reproductive health care, including pregnancy testing,
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`birth control, testing and treatment for STIs, general gynecological care, and abortion. GWC sues
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`on its own behalf, on behalf of its patients, and on behalf of its physicians and staff.
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`12.
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`PPSAT and GWC operate the only three abortion clinics in South Carolina. Each
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`of PPSAT and GWC’s locations holds a state license to perform first-trimester abortions, see S.C.
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`Code Ann. § 44-41-75, which corresponds to abortions up to 14 weeks LMP, id. § 44-41-10; see
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`also see also S.C. Code Ann. Regs. 61-12.101(S)(4). At each of these facilities, physicians licensed
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`to practice medicine in South Carolina provide abortions.
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`13.
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`PPSAT operates two health centers in the state, one in Columbia and the other in
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`Charleston. At each location, PPSAT provides medication abortion up to 11 weeks LMP, and
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`abortion by procedure up to 14 weeks LMP.
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`5
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`3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 6 of 19
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`14.
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`GWC operates a clinic in Greenville, where it generally provides medication
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`abortion through 10 weeks LMP and abortion by procedure up to 14 weeks LMP.
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`15.
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`Dr. Terry L. Buffkin, M.D., is a physician licensed to practice medicine in South
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`Carolina and a co-owner of GWC. He is a board-certified obstetrician/gynecologist (“OB/GYN”)
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`who provides a range of reproductive health care to patients, including medication abortion and
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`abortion by procedure up to 14 weeks LMP. Dr. Buffkin brings this claim on behalf of himself and
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`his patients.
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`B.
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`Defendants
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`16.
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`Defendant Alan Wilson is the Attorney General for the State of South Carolina. He
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`is responsible for, among other duties, enforcing the civil and criminal laws of the State. Defendant
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`Wilson has criminal enforcement authority for violations of the Act, pursuant to S.C. Code Ann.
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`§ 1-7-40. Moreover, he has the “exclusive right, in his discretion, to assign” solicitors in the State
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`to criminal matters outside their circuits “in case of the incapacity of the local solicitor or
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`otherwise.” Id. § 1-7-350. He is sued in his official capacity.
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`17.
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`Defendant Edward Simmer is the Director of the South Carolina Department of
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`Health and Environmental Control (“DHEC”). He is responsible for directing all DHEC activities.
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`DHEC is responsible for licensing abortion clinics, certifying that they are suitable for the
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`performance of abortions, and taking related enforcement action. See id. §§ 44-41-70; 44-41-
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`460(D). He is sued in his official capacity.
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`18.
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`Defendant Anne G. Cook is the President of the South Carolina Board of Medical
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`Examiners (“BME”), which is responsible for licensing and disciplining physicians who practice
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`in South Carolina, pursuant to S.C. Code Ann. § 40-47-10. BME has broad authority, upon a
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`3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 7 of 19
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`majority vote of its members, to discipline a physician, including through license revocation for a
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`felony conviction. Id. § 40-47-110(B)(2). She is sued in her official capacity.
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`19.
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`Defendant Stephen I. Schabel is Vice President of the BME, which is responsible
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`for licensing and disciplining physicians who practice in South Carolina, pursuant to S.C. Code
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`Ann. § 40-47-10. BME has broad authority, upon a majority vote of its members, to discipline a
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`physician, including through license revocation for a felony conviction. Id. § 40-47-110(B)(2). He
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`is sued in his official capacity.
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`20.
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`Defendant Ronald Januchowski is Secretary of the BME, which is responsible for
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`licensing and disciplining physicians who practice in South Carolina, pursuant to S.C. Code Ann.
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`§ 40-47-10. BME has broad authority, upon a majority vote of its members, to discipline a
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`physician, including through license revocation for a felony conviction. Id. § 40-47-110(B)(2). He
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`is sued in his official capacity.
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`21.
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`Defendant Jim C. Chow is a Member of the BME, which is responsible for licensing
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`and disciplining physicians who practice in South Carolina, pursuant to S.C. Code Ann. § 40-47-
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`10. BME has broad authority, upon a majority vote of its members, to discipline a physician,
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`including through license revocation for a felony conviction. Id. § 40-47-110(B)(2). He is sued in
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`his official capacity.
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`22.
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`Defendant George S. Dilts is a Member of the BME, which is responsible for
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`licensing and disciplining physicians who practice in South Carolina, pursuant to S.C. Code Ann.
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`§ 40-47-10. BME has broad authority, upon a majority vote of its members, to discipline a
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`physician, including through license revocation for a felony conviction. Id. § 40-47-110(B)(2). He
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`is sued in his official capacity.
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`3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 8 of 19
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`23.
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`Defendant Dion Franga is a Member of the BME, which is responsible for licensing
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`and disciplining physicians who practice in South Carolina, pursuant to S.C. Code Ann. § 40-47-
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`10. BME has broad authority, upon a majority vote of its members, to discipline a physician,
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`including through license revocation for a felony conviction. Id. § 40-47-110(B)(2). He is sued in
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`his official capacity.
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`24.
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`Defendant Richard Howell is a Member of the BME, which is responsible for
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`licensing and disciplining physicians who practice in South Carolina, pursuant to S.C. Code Ann.
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`§ 40-47-10. BME has broad authority, upon a majority vote of its members, to discipline a
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`physician, including through license revocation for a felony conviction. Id. § 40-47-110(B)(2). He
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`is sued in his official capacity.
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`25.
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`Defendant Theresa Mills-Floyd is a Member of the BME, which is responsible for
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`licensing and disciplining physicians who practice in South Carolina, pursuant to S.C. Code Ann.
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`§ 40-47-10. BME has broad authority, upon a majority vote of its members, to discipline a
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`physician, including through license revocation for a felony conviction. Id. § 40-47-110(B)(2). She
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`is sued in her official capacity.
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`26.
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`Defendant Jeffrey A. Walsh is a Member of the BME, which is responsible for
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`licensing and disciplining physicians who practice in South Carolina, pursuant to S.C. Code Ann.
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`§ 40-47-10. BME has broad authority, upon a majority vote of its members, to discipline a
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`physician, including through license revocation for a felony conviction. Id. § 40-47-110(B)(2). He
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`is sued in his official capacity.
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`27.
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`Defendant Christopher C. Wright is a Member of the BME, which is responsible
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`for licensing and disciplining physicians who practice in South Carolina, pursuant to S.C. Code
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`Ann. § 40-47-10. BME has broad authority, upon a majority vote of its members, to discipline a
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`physician, including through license revocation for a felony conviction. Id. § 40-47-110(B)(2). He
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`is sued in his official capacity.
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`28.
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`Defendant Scarlett A. Wilson is the Solicitor for South Carolina’s 9th Judicial
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`Circuit, which includes the City of Charleston, where PPSAT’s Charleston health center is located.
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`In cooperation with the Attorney General, she has criminal enforcement authority for violations of
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`the Act, pursuant to S.C. Code Ann. § 1-7-320. She is sued in her official capacity.
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`29.
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`Defendant Byron E. Gipson is the Solicitor for South Carolina’s 5th Judicial
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`Circuit, which includes the portion of the City of Columbia where PPSAT’s Columbia health
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`center is located. In cooperation with the Attorney General, he has criminal enforcement authority
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`for violations of the Act, pursuant to S.C. Code Ann. § 1-7-320. He is sued in his official capacity.
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`30.
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`Defendant William Walter Wilkins, III is the Solicitor for South Carolina’s 13th
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`Judicial Circuit, which includes the City of Greenville, where GWC is located. In cooperation with
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`the Attorney General, he has criminal enforcement authority for violations of the Act, pursuant to
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`S.C. Code Ann. § 1-7-320. He is sued in his official capacity.
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`FACTUAL ALLEGATIONS
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`I.
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`Prior South Carolina Law
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`31.
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`A full-term pregnancy lasts approximately 40 weeks LMP.
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`32.
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`Viability is generally understood as the point when a fetus has a reasonable chance
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`for sustained life after birth, with or without artificial support. South Carolina law has long
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`contained a “legal presumption” that “viability occurs no sooner than the twenty-fourth week of
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`3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 10 of 19
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`pregnancy,” S.C. Code Ann. § 44-41-10(1); see also S.C. Code Reg. 61-12, § 101(T), and it has
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`banned the performance of nearly all post-viability abortions, see S.C. Code Ann. § 44-41-450.1
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`33.
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`As noted above, Plaintiffs operate the only abortion clinics in South Carolina. They
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`do not provide abortion beyond 14 weeks LMP. Because no embryo or fetus is viable at or before
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`this time, Plaintiffs perform only previability abortions.
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`34.
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`Before the enactment of SB 1, South Carolina law already imposed detailed
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`requirements on physicians performing, and patients seeking, abortions. These include a mandate
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`that abortion providers ensure that a patient had available at least 24 hours in advance of an
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`abortion certain materials prepared by the State. Id. § 44-41-330(A)(2), (C). Patients who are
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`unable to have the opportunity to review the State’s biased counseling materials before coming to
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`Plaintiffs’ offices must make two separate visits.
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`35.
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`Prior to SB 1’s adoption, South Carolina did not require abortion providers to
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`perform ultrasounds before an abortion, but Plaintiffs performed them when medically indicated.
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`For example, when patients are unsure of their last menstrual period, ultrasounds can be useful to
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`pinpoint the gestational age of the pregnancy, which may affect, for example, whether medication
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`abortion is available.
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`36.
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`Early in pregnancy, Plaintiffs generally perform ultrasounds transvaginally,
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`meaning that a probe is inserted into the patient’s vagina. As a pregnancy progresses, they typically
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`perform transabdominal ultrasounds, which involve placement of a probe onto the patient’s bare
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`abdomen.
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`1 Indeed, South Carolina has banned even previability abortions beginning at 20 weeks post-
`fertilization (22 weeks LMP), see S.C. Code Ann. § 44-41-450, a restriction that to date has not
`been challenged in court and which does not affect Plaintiffs’ current provision of abortion
`services.
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`3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 11 of 19
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`II.
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`The Challenged Act
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`37.
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`The South Carolina Senate passed SB 1 on January 28, 2021, and the House of
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`Representatives adopted an identical version of the bill on February 18. The Act is now before
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`South Carolina Governor Henry McMaster, who urged the Legislature to adopt the bill and has
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`vowed to sign it “immediately.”2 The Act will take immediate effect upon his approval. SB 1, § 9.
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`38.
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`The Act leaves in place the existing legal presumption that “viability occurs no
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`sooner than the twenty-fourth week of pregnancy,” S.C. Code Ann. § 44-41-10(1), and the
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`restriction that already prohibits nearly all post-viability abortions, id. § 44-41-450.
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`39.
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`However, the Act imposes dramatic changes to South Carolina law by banning
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`abortion after roughly six weeks of pregnancy LMP (the “Six-Week Ban”). The Act also includes
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`new ultrasound, mandatory disclosure, recordkeeping, reporting, and written notice requirements
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`that are closely intertwined with the operation of the Six-Week Ban. See, e.g., SB 1, § 3 (adding
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`S.C. Code Ann. §§ 44-41-640, -650); id. § 4 (amending S.C. Code Ann. § 44-41-460(A)); id. § 5
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`(adding S.C. Code Ann. § 44-41-330(A)(1)(b)); id. § 6 (amending S.C. Code Ann. § 44-41-60).
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`40.
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`The Six-Week Ban provides that “no person shall perform, induce, or attempt to
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`perform or induce an abortion” where the “fetal heartbeat has been detected.” SB 1, § 3 (adding
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`S.C. Code Ann. §§ 44-41-680(A), -690). It defines “fetal heartbeat” to include any “cardiac
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`activity, or the steady and repetitive rhythmic contraction of the fetal heart within the gestational
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`sac.” Id. (adding S.C. Code Ann. § 44-41-610(3)). The term, therefore, covers not just a “heartbeat”
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`in the lay sense, but also early cardiac activity present before development of the cardiovascular
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`2 Gov. Henry McMaster, State of the State Address, Jan. 13, 2021 (“Send me the heartbeat bill and
`I will immediately sign it into law.”); Gov. Henry McMaster (@henrymcmaster), Twitter (Jan. 26,
`2021, 12:26 PM), https://twitter.com/henrymcmaster/status/1354118432900460544 (“As the
`Heartbeat Bill goes to the Senate floor today, I urge my colleagues in the General Assembly to
`send this bill to my desk for my signature!”).
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`system. Such cardiac activity may be detected by transvaginal ultrasound as early as six weeks of
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`pregnancy LMP (and sometimes sooner). Early in pregnancy, even with ultrasound, this activity
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`would not be audible but would instead appear as a visual flicker.
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`41.
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`As defined by the Act, a “fetal heartbeat” also need not occur in a fetus to trigger
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`the Act’s prohibition on abortion. In the medical field, the developing organism present in the
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`gestational sac during pregnancy is most accurately termed an “embryo” until at least 10 weeks
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`LMP; the term “fetus” is appropriately used after that time. Despite this accepted distinction, the
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`Act defines “human fetus” to include an “individual organism of the species homo sapiens from
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`fertilization [of an egg] until live birth.” Id. (adding S.C. Code Ann. § 44-41-610(6)).
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`42.
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`The Act requires all abortion providers to determine whether the Six-Week Ban
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`applies by newly mandating the performance of a pre-abortion ultrasound for every patient. Id.
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`(adding S.C. Code Ann. § 44-41-630). The provider must inform the patient when a “fetal
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`heartbeat” has been detected, along with other State-mandated information designed to discourage
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`the patient who can no longer obtain an abortion at all in South Carolina from going elsewhere to
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`terminate her pregnancy. Id. (adding S.C. Code Ann. § 44-41-640); id. § 5 (amending S.C. Code
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`Ann. § 44-41-330(A)(1)).
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`43.
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`The Six-Week Ban contains only narrow exceptions: (1) to save the life of the
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`pregnant patient; (2) to prevent certain types of irreversible bodily impairment to the patient;
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`(3) in cases of a fetal health condition that is “incompatible” with sustained life after birth, and
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`(4) in narrow circumstances where the pregnancy is the result of rape or incest. Id. § 3 (adding
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`S.C. Code Ann. § 44-41-680(B), which cross-references S.C. Code Ann. § 44-41-430(5)). Of note,
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`the rape and incest exceptions apply only if, within 24 hours of the abortion, the physician reports
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`the alleged rape or incest and the patient’s name and contact information to the sheriff in the county
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`where the abortion was performed, irrespective of the patient’s wishes, where the alleged crime
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`occurred, and whether the provider has already complied with other mandatory reporting laws,
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`where applicable. Id. (adding S.C. Code Ann. § 44-41-680(C)).
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`44.
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`Both the physician who performs an abortion, and the clinic in which the abortion
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`is performed, risk severe penalties for violating the Six-Week Ban. Those penalties include a
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`felony offense that carries a $10,000 criminal fine and up to two years in prison. Id. § 3 (adding
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`S.C. Code Ann. § 44-41-680(D)); see also S.C. Code Ann. § 16-1-40 (accessory liability).
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`Moreover, violation of the Six-Week Ban could result in revocation of a doctor’s medical license
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`and a clinic’s license to perform abortions. S.C. Code Ann. §§ 40-47-110(A), (B)(2); 44-41-70;
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`44-41-75(A). The Act also creates a new civil cause of action that authorizes a patient “on whom
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`an abortion was performed or induced” in violation of the Six-Week Ban to sue the abortion
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`provider for damages, and to recoup her court costs and attorney’s fees as well. SB 1, § 3 (adding
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`S.C. Code Ann. § 44-41-740).
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`III. Abortion in South Carolina
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`45.
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`Legal abortion is one of the safest procedures in contemporary medical practice and
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`is far safer than childbirth. A woman’s risk of death associated with childbirth is approximately
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`fourteen times higher than that associated with abortion, and every pregnancy-related complication
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`is more common among women having live births than among those having abortions.3
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`46.
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`Abortion is also very common: Approximately one in four women in this country
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`will have an abortion by age forty-five.
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`3 Plaintiffs use “woman” or “women” as a short-hand for people who are or may become pregnant,
`but people of all gender identities, including transgender men and gender-diverse individuals, may
`also become pregnant and seek abortion services, and would thus also suffer irreparable harm
`under SB 1.
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`47.
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`Patients seek an abortion for a range of reasons. Many are already mothers, having
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`had at least one child, and they may struggle with basic unmet needs for their families. Other
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`patients decide that they are not ready to become parents because they are too young or want to
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`finish school before starting a family. Some patients have health complications during pregnancy
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`that lead them to conclude that abortion is the right choice for them. In some cases, patients are
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`struggling with substance abuse and decide not to become parents or have additional children
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`during that time in their lives. Still others have an abusive partner or a partner with whom they do
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`not wish to have children for other reasons.
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`48.
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`Although patients generally obtain an abortion as soon as they are able, the majority
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`of patients who obtain abortions in South Carolina are at least six weeks LMP into their pregnancy
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`by the time of the abortion.
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`49.
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`There are many reasons why most patients do not obtain abortions before six weeks
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`LMP. In a person with regular monthly periods, fertilization typically occurs two weeks after their
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`last menstrual period (2 weeks LMP). Thus, even a person with a highly regular, four-week
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`menstrual cycle would already be 4 weeks LMP when she misses her period, generally the first
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`clear indication of a possible pregnancy. At-home pregnancy tests are not generally effective until
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`at least 4 weeks LMP.
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`50.
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`As a result, even a person with regular menstrual cycles might have roughly two
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`weeks before the Six-Week Ban applies to learn she is pregnant, decide whether to have an
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`abortion, and seek and obtain an abortion at one of the three available locations in South Carolina.
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`The Charleston and Columbia health centers generally offer abortions only two days per week due
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`to operational limitations.
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`51.
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`South Carolina abortion providers generally do not initiate an abortion until
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`sometime between 4 and 5 weeks LMP, when a pregnancy can first be located in the uterus using
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`transvaginal ultrasound. Accordingly, even patients who discover that they are pregnant at an early
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`date could have just a matter of days between the point when a pregnancy can be located in the
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`uterus and when an ultrasound would detect cardiac activity.
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`52.
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`The hurdles described above apply to patients who learn very early that they are
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`pregnant. But many patients do not know they are pregnant until at or after six weeks LMP,
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`especially patients who have irregular menstrual cycles or who experience bleeding during early
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`pregnancy, a common occurrence that is frequently and easily mistaken for a period. Other patients
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`may not develop or recognize symptoms of early pregnancy.
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`53.
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`Particularly for patients living in poverty or without insurance, travel-related and
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`financial barriers also pose a barrier to obtaining an abortion before six weeks LMP. With very
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`narrow exceptions, South Carolina bars coverage of abortion in its Medicaid program and in
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`private insurance plans offered on the State’s Affordable Care Act exchange. S.C. Code Ann.
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`§§ 1-1-1035; 38-71-238. Patients living in poverty or without insurance coverage available for
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`abortion must often make difficult tradeoffs among other basic needs like food or rent to pay for
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`their abortions. Many must seek financial assistance from extended family and friends or from
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`local abortion funds to pay for care, a process that takes time. Moreover, many patients must
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`navigate other logistics, such as inflexible or unpredictable job hours and childcare needs, that may
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`delay the time when they are able to obtain an abortion.
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`54.
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`The COVID-19 pandemic has only exacerbated these impediments, particularly for
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`Black patients whose communities have been hardest hit by illness and the related economic
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`downturn. Patients understandably fear the health risks of being in a clinic and traveling across the
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`3:21-cv-00508-MGL Date Filed 02/18/21 Entry Number 1 Page 16 of 19
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`state to obtain health care. In addition, many South Carolinians are navigating job losses or
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`reductions in hours, related loss of health insurance, and a lack of child care due to COVID, all of
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`which may delay the point when a patient recognizes she is pregnant and when she is actually able
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`to obtain an abortion.
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`55.
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`As described in part above, South Carolina has enacted numerous medically
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`unnecessary statutory and regulatory requirements that must be met before a patient may obtain
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`an abortion, including that abortion providers ensure that patients had certain State-mandated
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`information available to them at least 24 hours in advance of an abortion. S.C. Code Ann. § 44-
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`41-330(A)(2), (C). South Carolina also prohibits the use of telehealth for medication abortion,
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`closing off a safe and effective option for many patients to obtain an abortion, particularly during
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`the COVID-19 pandemic. See id. § 40-47-37(C)(6).
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`56.
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`South Carolina also typically requires patients sixteen years old or younger to
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`obtain written parental authorization for an abortion. Without such authorization, a patient must
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`get a court order permitting them to obtain care, see id. §§ 44-41-31, -32, -33, which South Carolina
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`law expressly recognizes could take three days, see id. § 44-41-32(5), not including time for
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`appeal. That process cannot realistically happen before a patient’s pregnancy reaches six weeks
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`LMP. Minor patients without a history of pregnancy may also be less likely to recognize early
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`symptoms of pregnancy than older patients who have been pregnant before.
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`57.
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`Patients whose pregnancies are the result of sexual assault or who are experiencing
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`interpersonal violence may need additional time to access abortion services due to ongoing
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`physical or emotional trauma. For these patients, too, obtaining an abortion before six weeks LMP
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`is exceedingly difficult, if not impossible.
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`IV.
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`The Impact of the Act on Plaintiffs and Their Patients
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`58.
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`As described above, the Act prohibits nearly all abortions after approximately six
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`weeks LMP, a point in pregnancy that is many months before viability. Yet the vast majority of
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`abortion patients in South Carolina who obtain abortion do so after six weeks LMP.
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`59.
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`SB 1 will force Plaintiffs and their physicians to turn away the majority of patients
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`seeking previability abortions, or risk substantial criminal penalties, professional sanctions, and/or
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`civil liability.
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`60.
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`The Act will make it virtually impossible to access abortion in South Carolina.
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`Patients who can scrape together the resources will be forced to travel out of state for medical care.
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`Many others who cannot do so will be forced to carry a pregnancy to term against their will or
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`seek ways to end their pregnancies without medical supervision, some of which may be unsafe.
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`61.
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`The Act will be particularly devastating for South Carolinians with low-incomes,
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`South Carolinians of color, and rural South Carolinians, who already face inequities in access to
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`medical care and who will bear the brunt of the Act’s cruelties. Forcing patients to carry their
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`pregnancies to term will place Black patients, for example, at even greater risk of adverse health
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`outcomes. As described above, the risk of death associated with childbirth is approximately 14
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`times higher than that associated with abortion, and every pregnancy-related complication is more
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`common in pregnancies ending in live births than among those ending through abortions.
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`Moreover, Black and other