Fetal heartbeat law leaves South Carolina doctors in dangerous limbo - Greenville News

South Carolina's Fetal Heartbeat Law, which went into effect after the Supreme Court overturned Roe v. Wade on June 24, has brought on a long list of unanswered questions about scenarios and legal circumstances surrounding women's healthcare, state OB-GYNs say.

"The question that comes in is how sick is sick enough and how do we determine that?" said Dr. Dawn Bingham, an OB-GYN in Columbia and vice-chair of South Carolina's section of the American College of Obstetricians and Gynecologists. "Even to us that are trained for this, it is not a black and white issue."

The fetal heartbeat law went into effect June 27 after the U.S. District Court of South Carolina stayed the injunction that had previously stopped the implementation of the law. The law prohibits abortions when a "fetal heartbeat" is detected, typically around 6-weeks into pregnancy, except when the life of the mother is threatened.

The law also allows exceptions in cases of rape and incest before 20 weeks gestation.

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It defines medical emergency as "a condition that, by any reasonable medical judgment, so complicates the medical condition of a pregnant woman that it necessitates the immediate abortion of her pregnancy to avert her death without first determining whether there is a detectable fetal heartbeat or for which the delay necessary to determine whether there is a detectable fetal heartbeat will create serious risk of a substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions."

"Not one physician acts unilaterally," Dr. Bingham said. "We have teams making decisions moment by moment in cooperation with the patient."

Dr. Bingham, along with other doctors in the SC Section of ACOG, which represents over 700 practitioners across the state, wrote a letter to the state legislature last week condemning the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization that reversed Roe v. Wade and ended constitutionally protected abortions nationwide. The letter further explains the impact of SC's fetal heartbeat law on care for pregnant people statewide.

The ACOG considers abortion a safe and essential part of comprehensive health care. 

"Pregnancy is not a benign condition. Pregnancy imposes significant physiological changes on a person's body. These changes can exacerbate underlying or preexisting conditions, and can severely compromise health or even cause death. Determining the appropriate medical intervention depends on a patient's specific condition. There are situations where pregnancy termination in the form of an abortion is the only medical intervention that can preserve a patient's health or save their life," the letter said.

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Dr. Natalie Gregory, an OB-GYN who practices in the Lowcountry of SC, recently shared her own letter on Facebook, which she first wrote to legislators in January 2021 while lawmakers were still only discussing the law. The letter has now been shared more than 2,400 times online.

"I believe the following are not political decisions but rather are private matters between a patient and her physician. Because I have been trained to be prepared for any situation, please consider the following situations and help me to make the most appropriate decisions. I have many practical real-life questions after reading the current legislation," she wrote, then outlined several questions about medical emergencies and issues that could occur during a pregnancy.

The letter posed questions on how to navigate a diagnosis of fetal anencephaly, a birth defect where a baby is born without parts of the brain and skull. According to the Center for Disease Control and Prevention, there is no known cure or treatment for fetal anencephaly, an anomaly that occurs for roughly 1 in every 4,600 babies born. Almost all babies born with anencephaly will die shortly after birth, the CDC says.

"There can be situations where a fetus can be desperately wanted and loved, and the most reasonable and compassionate practice is to terminate the pregnancy," Gregory told The Greenville News.

Questions were also raised about conditions like ectopic pregnancies, which happen when a fertilized egg implants outside of the uterus. This occurs in 1% to 2% of all pregnancies, according to a study from the American Academy of Family Physicians. Ruptured ectopic pregnancies account for 2.7% of pregnancy-related deaths.

The American Association of Pro-Life Obstetricians and Gynecologists doesn't consider treatment of ectopic pregnancy "by standard surgical or medical procedures to be the moral equivalent of elective abortion."

"I only laid out some of the instances, but I could have kept going for days," Gregory told The News. "I don't know how to navigate saving a woman's life when it requires me to break the law."

Physicians who perform an abortion in violation of the law can face a felony conviction, up to two years in prison and a $10,000 fine, according to the state code.

"I've contacted my malpractice carrier and have not gotten an answer, probably because there are no answers," Dr. Gregory said about her potential protections under the law. "They typically don't cover criminal offenses."

The letter from the SC Section of ACOG noted a threat to patient-physician relationships when doctors are faced with the prospects of being criminalized for terminating a pregnancy when medically necessary.

"The documentation required by physicians for exceptions to this law for fetal anomalies or to save the life or health of the mother embed a fear of criminalization into the patient-physicians relationship, potentially delaying care until a pregnancy-related medical condition becomes much more dangerous for vulnerable women," the letter said.

"If people are afraid of criminalization it will delay people's care, it will make people pause," Dr. Bingham told The News.

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Hospital systems aren't providing much more clarity on how they're interpreting the law.

"They're building the plane while they're flying it," Dr. Bingham said.

The Greenville News reached out to Prisma Health in Greenville, Spartanburg Regional Healthcare System, and the Medical University of South Carolina in Charleston for clarity on how providers will interpret the newly enacted legislation.

"At Prisma Health, we are dedicated to the health and well-being of our patients. We provide the highest quality of complex obstetrical, prenatal and fertility care to the patients we serve throughout South Carolina," said Prisma spokesperson, Sandy Dees, in an email. "As always, we comply with state and federal laws and regulations."

A statement from SRHS shared with The Greenville News stated, "Spartanburg Regional Healthcare System is evaluating the impact of the Roe v. Wade ruling and the Fetal Heartbeat Act on our patients and providers. We remain committed to the health and wellness of all patients, including those seeking emergency medical care, and to complying with all state and federal regulations"

Similarly, Heather Woolwine, director of public affairs and media relations at MUSC, wrote: "At MUSC, our care focus has always been and will continue to be on the health of both mother and baby. When complications arise during a pregnancy, our providers are medically and ethically obligated to explain all options to their patients. MUSC and its care providers will continue to provide the most appropriate and safest care possible while complying with South Carolina law."

However, practitioners have not received much guidance on how to interpret the law internally.

An internal email sent to doctors at Prisma Health the evening of June 28 and reviewed by The Greenville News alerted physicians that the health care company's legal team was working with medical professionals across the state to provide clarification for how the law's exceptions will be interpreted and enforced. Further guidance was said to follow later in the week.

"Effective immediately, we very strongly recommend that every plan for any form of pregnancy termination be attested to and documented by two credentialed physicians," the email said. 

Prisma Health would not respond directly to requests to clarify or verify the email. 

"What if those doctors disagree? What if they agree and your anesthesiologist doesn't agree, or what if your scrub tech doesn't hand you the instruments because they think this is murder?" Gregory said. "I don't want to be talking politics in the midst of an emergency."

When asked if the state Attorney General's office will provide guidance or further details for what constitutes as a medical emergency via the new law, spokesperson Robert Kittle, said it's up to the courts. 

"Our office does not put out guidance on new laws. The law itself spells out any specifics that the legislature deemed necessary. If there are questions, it would be up to a court to determine the answers. Our office does not have the authority to do that," Kittle said in an email. "When our office issues opinions they do not carry the force of law, but simply express how we think a court might rule. It's ultimately up to a court to decide the issue. The same applies to this law—it would be up to a court to answer any questions or ambiguities with the law."

On Thursday, a South Carolina House committee will begin a series of public listening sessions to debate options for more restrictive legislation, starting with H.B. 5399. Gov. Henry McMaster has praised the fetal heartbeat bill and recently told reporters he "looks forward to a day when we don't have any abortions in South Carolina and we won't need exceptions." 

Gregory intends to submit her letter for testimony.

"I will risk my career because I took an oath that supersedes my medical license," Dr. Gregory said. "I'm not going to watch a woman die so I can follow the law, and if that means going to jail then so be it."

Kathryn Casteel is an investigative reporter with The Greenville News and can be reached at KCasteel@gannett.com or on Twitter @kathryncasteel.