SC’s abortion ban has ‘serious problems,’ federal judge says

CHARLESTON — South Carolina’s abortion ban has clear issues, potentially making it unconstitutional, a federal judge said Friday.

U.S. District Judge Richard Gergel, speaking at the end of a three-day trial in Charleston, didn’t give any official verdict on a case challenging the state’s ban on most abortions past six weeks of pregnancy. But he did have major concerns with the law as written, which he said makes its exceptions too vague to follow or enforce.

“I think the statute has serious problems, but frankly, I think the General Assembly can fix it,” Gergel said.

The lawsuit, filed last year, argued the state’s abortion ban was vague enough to violate the U.S. Constitution’s guarantee of due process. Over three days, doctors testified they’re afraid to provide abortions even when the law might allow them.

The law, passed in 2023, prohibits most abortions after a fetal heartbeat is detectable, which the state Supreme Court has set as six weeks. It threatens violating doctors with up to two years in prison, a fine of up to $10,000 and the possibility of losing a medical license.

The trial focused on when, exactly, medical exceptions to the ban apply: abortions needed to save the mother’s life or prevent lifelong impairment or diagnosis of an anomaly so severe the fetus isn’t expected to survive after birth.

The plaintiffs argued that its wording can lead different doctors to reach different conclusions.

The law allows doctors to use “reasonable medical judgment,” but doctors challenging it questioned how a prosecutor would decide that.

Doctors should understand what’s reasonable and what isn’t, attorneys for the governor and attorney general’s office said. Four doctors who testified for the defense said they found the law easy to understand and implement.

“If you are being reasonable, you are not violating the law,” said Grayson Lambert, attorney for the governor.

“That’s a subjective standard,” Gergel replied.

None of the defense’s doctors performed abortions before the law passed because of religious objections, they testified. That means they have no reason to fear the law, unlike the doctors challenging the law, who previously performed abortions as a routine part of their care, their attorneys said.

Gergel repeatedly called the law vague and said he had serious problems with it.

He also questioned how wide his ruling should be, including whether it should apply only to the doctors who sued. He’s unlikely to issue an order halting the law entirely, he said.

If Gergel finds the law unconstitutional, an appeal is certain, Lambert told him.

‘Good faith’ clause

Gergel said there’s a relatively easy fix to the problems he saw: If legislators added a clause protecting doctors acting in good faith, Gergel would consider the law constitutional, he said.

That wording would fall in line with the U.S. Supreme Court’s 1992 decision in Planned Parenthood v. Casey, which redefined the guaranteed right to an abortion nationally and allowed more state regulation.

Pennsylvania’s law, which the case challenged, included similar phrases to those contested in South Carolina. But the blanket “good faith” clause made it clear doctors wouldn’t face prosecution if they misunderstood, Gergel said.

The U.S. Supreme Court’s 2022 decision that returned the legality of abortions back to the states overturned both Roe v. Wade (1973) and Planned Parenthood v. Casey.

As written, the state’s 2023 law has no mention of a doctor’s intention. Other criminal laws require proof that a person intended to harm someone. The abortion law requires only proof that doctors intended to provide an abortion, even if they thought they were following the law, Gergel said.

Doctors don’t have the power of hindsight, he said.

Sometimes, a doctor has to make a call in the moment that another doctor might not agree with, or even that the doctor might not have done in retrospect, Gergel said.

Whether legislators would make that change is another question. Trying to tweak the law would reopen debates on even stricter abortion restrictions.

Gergel can’t change the law. And he probably couldn’t strike only the exceptions, he said, though Lambert tried to argue Gergel could legally get rid of the exception for fatal fetal anomalies.

Legislators clearly intended for abortions to remain legal in certain cases, Gergel said.

Otherwise, he noted, they would have passed a law with no exceptions. Proposals of that sort have failed repeatedly.

Unconstitutionally vague

Doctors who testified during the trial disagreed about when the exceptions applied.

Even the state’s witnesses, chosen to speak about how they found the law clear, disagreed about when an abortion would be legal under the exceptions.

“I think the only thing we can agree on here is none of them agree with each other,” Gergel said.

For instance, one doctor interpreted a requirement that an abortion could be performed only if the fetus had an abnormality “incompatible with sustaining life after birth” to mean the baby would live no more than six months. Another drew the cutoff at a year. And both said they thought chromosomal abnormalities that kill most babies at birth would qualify, even though other doctors pointed out some rare cases when those children lived for years.

“Can we figure out what is ‘reasonable medical judgment’ when there’s such a diversity of opinion?” Gergel said.

Being ambiguous doesn’t necessarily make a law unconstitutional, Gergel said. But when the punishment might mean prison time or the end of a person’s professional career, people need clarity, he said.

That’s especially true in a complicated medical case, Gergel said.

Doctors need to feel certain about which procedures they can perform without wondering whether they’ll go to prison. And police need to understand what’s allowed so they don’t make arbitrary arrests, he said.

“The statute is sort of written like (legislators) are playing checkers and doctors are playing three-level chess,” Gergel said.

None of the doctors who testified during the trial were investigated or charged with a crime for performing an abortion. But those who did offer abortions erred on the side of caution, often sending patients with ambiguous cases out of state, they said.

“Had they kept them in (state), who knows what would’ve happened?” Gergel said.

Some cases are clearly defined, Gergel said. If a woman is in active kidney failure, “a Boy Scout can figure” out she qualifies for the exception, he said.

“I’m trying to figure out, for the not-easy cases, is there some fixed meaning so physicians are not put in jeopardy?” Gergel said.

Without it, the state will continue losing OB-GYNs afraid to practice in the state, Gergel said.

“There won’t be any OB-GYNs left,” he said.