A South Carolina judge Tuesday declined to overturn the state’s Fetal Heartbeat Law, which bans abortions after six weeks. The judge also granted the state’s request to send the case directly to the South Carolina Supreme Court. The motion to stop the abortion law from taking effect, filed by Planned Parenthood, asserts that the law violates the right to privacy found in the South Carolina state constitution.

South Carolina state law makes it a felony to perform or seek an abortion after the “fetal heartbeat has been detected,” which includes cardiac activity that can be detected as early as six weeks of pregnancy. Exceptions to the law are to save the mother from death or certain types of permanent injury, in cases of fetal health incompatible with sustained life after birth, and in narrow circumstances where the pregnancy is a result of rape or incest.

The emergency motion for preliminary injunction to enjoin the abortion ban provides two claims for relief on the grounds of the state constitution. The first is that the law violates the right to privacy protected under the South Carolina constitution, which has been recognized by the South Carolina Supreme Court to include the right to preserve one’s “bodily integrity.”

The second is that the law violates the Equal Protection Clause of the South Carolina Constitution by depriving pregnant people the right to make decisions about their bodies while allowing the right to those who want to continue their pregnancy. It also alleges that the law “relies on and entrenches stereotypical, antiquated, and overbroad generalizations about the roles, abilities, and decision-making capacities of women” that violate the Equal Protection Clause.

In response to plaintiffs’ motion, the State on July 20 filed a motion arguing that the state constitutional right to privacy did not include the right to abortion and that no South Carolina court has ever held that the language of the constitution encompassed a right to obtain an abortion. It also argued that abortion was illegal in South Carolina when the right to privacy was amended into the state constitution.

South Carolina’s abortion ban was passed in 2021 but was blocked by a federal judge when it was challenged on the basis of the landmark US Supreme Court rulings in Roe v. Wade and Planned Parenthood v. Casey. On June 27 after Roe was overturned, the State won an emergency motion in federal court to stay the judge’s injunction, and the abortion ban came into effect.

The challenge will now head to the state Supreme Court. The plaintiffs, Planned Parenthood South Atlantic, Greenville Women’s Clinic, and two physicians providing abortion in South Carolina, are represented the law firm Burnette Shutt & McDaniel.