Inside Health Policy: South Carolina Bill Tees Up Contraception Access Court Battle

South Carolina is teeing up a potential legal battle over the right to contraceptives that may land at the Supreme Court, according to legal experts, through a state law that would adjust reproductive health definitions to ban access to some contraceptives, including via telehealth.

The state-level legislation is proof of a shift in anti-abortion groups’ strategy that aims to limit or eliminate access to birth control, according to two experts on abortion law, who predicted mismatching actions between Democrat-led states, GOP-led states and the federal government on reproductive health will continue to overwhelm the legal systems.

If the South Carolina bill becomes law, telehealth companies may be liable for ensuring residents are able to access their websites or information on reproductive health. Tactics to eliminate access to reproductive health care can also be used to target other politicized medical treatments, including gender-affirming care.

The South Carolina bill (S 323) would ban all abortions with the sole exception abortions to treat a medical emergency or risk of serious impairment. The bill also says it is unlawful to distribute, sell or advertise an “abortifacient.” Mifepristone, misoprostol or any other drug with the intent of causing an abortion qualify as abortifacients.

The federal government does not have a definition of abortion, according to Rachel Rebouché, G. Rollie White Teaching Excellence Chair in Law at the University of Texas law school. Federal laws incorporate an understanding set out by cases that abortion is the termination of a pregnancy.

The bill narrows what is defined as an allowed contraceptive, effectively allowing commonly used contraceptive methods such as devices or medications to be grouped into the definition of abortion.

Rebouché said the language in the bill could move some products from the category of contraceptives to the category of abortifacients, effectively banning them in the state. Kyle Faget, regulatory expert and partner at Foley & Lardner, said the change in definitions may signal that South Carolina is moving toward restricting access to contraception.

“What South Carolina could be indicating is that it may be willing to fight that fight and take it to the Supreme Court and let the Supreme Court decide,” Faget said. “I don't think any of us would be super surprised if this court kicked it back to a federalist type of regime where states decide what to do.”

In the 1965 Griswald v. Connecticut ruling, the Supreme Court ruled the constitution protects married couples' right to use contraceptives without government restriction. Almost a decade later, the Supreme Court ruled that single individuals have the right to contraception in the Eisenstadt v. Baird case. These cases could be overturned in a future Supreme Court ruling.

If enacted, the South Carolina bill would also block anyone from providing information to pregnant women or anyone else seeking information about abortion, or from hosting and maintaining a website with this information. But legal experts say that provision could violate the first amendment.

For example, Faget said Hey Jane, a telehealth platform offering access to abortion pills and reproductive health educational resources, could be liable if someone from South Carolina accesses its website if the law is enacted. "The onus is then on companies and educational services on abortion to restrict,” she added. But companies that provide information on how to get an abortion -- not prescribing and mailing abortion medication -- could sue South Carolina for violating their First Amendment rights, according to Rebouché.

If the bill passes, any person who violates the law could be charged with a felony and imprisoned. These provisions do not apply to pharmacists who dispense any drugs for a lawful medical purpose or medical professionals providing a treatment to a pregnant person that accidentally causes a miscarriage.

Dana Singiser, the lead reproductive health care policy and legislative leader at the Contraception Access Initiative, said the South Carolina bill is an example of a trend that “reflects how anti-abortion groups are really running anti-contraception campaigns” that aim to “redefine pregnancy and abortion.”

“People want contraception to be more available, not less available,” Singiser said. “There's this really dramatic wedge between any elected official that is supporting things like the South Carolina bill or cuts to Title X or defunding Planned Parenthood and what their constituents want.” -- Cara Smith (csmith@iwpnews.com)