A volunteer clinic escort holds a sign outside a Planned Parenthood clinic in Columbia, South Carolina, on Friday, March 28. (Photo by Skylar Laird/SC Daily Gazette)

U.S. Supreme Court justices will hear arguments Wednesday about whether South Carolina can remove Planned Parenthood clinics from the state’s Medicaid program because they offer abortions in a case that could imperil health care options for patients with low incomes.

At the center of the lawsuit is a conflict over whether a section of the Medicaid Act gives people who use Medicaid the right to choose their providers.

“While it might be just South Carolina’s name on this court case, it will have huge impacts nationwide,” said Vicki Ringer, Planned Parenthood South Atlantic’s director of public affairs in the state. “It will allow all of these red states that have been trying so hard to close down Planned Parenthood, and it will take away medical care for so many low-income people throughout our region of the country.”

Opponents of Planned Parenthood said Republican South Carolina Gov. Henry McMaster should be able to direct Eunice Medina, the new head of the state Department of Health and Human Services, to remove the organization’s Charleston and Columbia clinics from the list of qualified Medicaid providers.

If the court rules broadly, it could allow other states to make the same move — and some already have. The case is also part of a broader strategy across the country to drain Planned Parenthood funding for all services, including reproductive health care aside from abortion. Efforts by abortion-rights opponents to do so go back decades in the United States.

Republican President Donald Trump’s administration has taken interest in the case, Medina v. Planned Parenthood South Atlantic. The acting U.S. solicitor general will argue in favor of South Carolina health officials during a portion of the Supreme Court hearing this week.  

Lawyers for Alliance Defending Freedom, a conservative advocacy firm instrumental in major anti-abortion cases that have appeared before the Supreme Court, represent South Carolina officials in the lawsuit.

“This case is about whether states have the flexibility to direct Medicaid monies to best benefit low-income women and families,” John Bursch, senior counsel and vice president of appellate advocacy at Alliance Defending Freedom, said in an email.

Planned Parenthood’s two South Carolina clinics offer abortion up to six weeks in compliance with state law. But staff also provide birth control, emergency contraception, prenatal and postpartum exams and STI testing and treatment, among other services. 

“Being able to deny Medicaid patients the ability to select their own qualified provider tells low-income women, especially, that once again ‘You’re not important. Your decision-making doesn’t matter. We are here to decide for you what is best,’” Ringer said.

The picture in South Carolina

McMaster’s executive order against clinics that also offer abortions — deeming them “unqualified to provide family planning services” — has been blocked by lower courts since 2018. Throughout a nearly seven-year court battle, appellate judges have repeatedly ruled in favor of Planned Parenthood South Atlantic, and the Supreme Court has rejected requests to take up the case — until now.

“South Carolina has made it clear that we value the right to life. Therefore, taxpayers should not be forced to subsidize abortion providers who are in direct opposition to their beliefs,” McMaster said in a Feb. 10 statement.

Nearly half — 48% — of South Carolinians surveyed in May 2024 oppose the six-week ban that’s in place, while 31% support it, and the rest were not sure or refused to answer, according to a Winthrop University poll last year. 

Ringer said South Carolina lawmakers’ anti-abortion positions are at odds with residents’ views on the issue.

“It’s political pandering, but it’s to a population that doesn’t agree with them,” she said. “They think because they’re elected, then that means we’re an anti-abortion, so-called ‘pro-life’ state.”

Like many states, South Carolina only allows Medicaid coverage of abortion in cases of rape, incest or to save a patient’s life.

Julia Walker, a spokesperson for the regional affiliate, said 10% of patients who routinely visit the South Carolina clinics for family-planning services use Medicaid.

Just 0.2% — $88,464 — of the $35 million the state spent on Medicaid-covered family-planning services went to Planned Parenthood in the 2022-2023 fiscal year, SC Daily Gazette reported. Medicaid is a reimbursement program, meaning providers foot the bill and seek at least partial reimbursement for an appointment or procedure.

A case study in Texas

Arkansas, Missouri and Texas — Republican-led states — have ended some clinics’ Medicaid eligibility for reproductive health care services because they provided abortions at one time or are affiliated with Planned Parenthood.

Still, clinic doors remain open in those states, despite ongoing lawsuits and right-wing wrangling that blocked Medicaid patients.

“Let’s be clear about where Texas was even before they cut Planned Parenthood out of Medicaid,” said Melaney Linton, president and CEO of Planned Parenthood Gulf Coast, which still has six locations in the greater Houston area. “Texas already was suffering some of the nation’s worst rates of maternal and infant mortality, and highest under and uninsured populations.”

Most of Houston is in Harris County, an area that has one of the highest Black maternal death rates nationwide. Black women in the county had a pregnancy-related mortality rate of 83.4 deaths per 100,000 live births from 2016 to 2020, according to a report last year.

The maternal mortality rate in Texas from 2018 to 2021 was 28.1, compared with 23.5 nationwide, according to federal data.

Black Texans are 2.5 times more likely to die from childbirth-related issues than white Texans, according to the state’s Maternal Mortality and Morbidity Review Committee.

A judge ruled in March 2021 that Texas could stop Planned Parenthood from receiving Medicaid funds. Linton said the state’s actions cut off an estimated 8,000 Planned Parenthood patients.

Linton offered an example of a former patient who struggled to find a Medicaid provider who would accept her insurance and give her the birth control she was seeking. Only 34% of providers accepted Medicaid and had IUDs and birth control shots readily available for new patients, according to a University of Texas at Austin research brief.

“Politicians like to talk about how they care about women and infants and families,” Linton said. “If they did, they would do everything they can to make sure that women have more access to birth control, not less.”

Six months after Texas suspended Planned Parenthood’s Medicaid funds for reproductive health care services, the state enacted a six-week abortion ban. Teen birth rates skyrocketed in Harris County and across the entire Lonestar State for the first time in 15 years, data shows.

Linton said what happens in Texas is often replicated in other parts of the country, and the same will probably hold true for the South Carolina case before the U.S. Supreme Court this week.

“Every American should be concerned about that,” she said.

Long waits and limited options

If the Supreme Court rules in South Carolina’s favor, Bursch, the Alliance Defending Freedom attorney, said Medicaid patients can instead access family-planning services at publicly funded health care clinics instead of the Planned Parenthood clinics in Charleston and Columbia. The state has 53 public health clinics that offer family-planning services, 32 federally qualified health centers and 14 Title X federally-funded family-planning clinics, including Planned Parenthood’s Columbia clinic.

But public clinics are struggling financially, said Dr. Katherine Farris, the chief medical officer at Planned Parenthood in the Carolinas and the Virginias, in a news conference Friday. A patient may have to wait three months for an intrauterine device appointment at some of them, but at Planned Parenthood, she said, the patient can walk in and get an IUD insertion the same day.

Ringer and Linton also said finding a provider that accepts Medicaid and can see a new patient promptly is not so simple. 

“Doctors who at one time did take Medicaid aren’t anymore. It is a losing prospect for many providers,” Ringer said. “I’ve seen what Medicaid reimburses, and for many of the services we provide, we lose money on them. But because we are a safety-net provider, that means we provide care to people no matter what. If you can or can’t pay, we are going to take care of you.”

South Carolina and Texas are 2 of 10 states that have not expanded Medicaid under the Affordable Care Act passed in 2010, Stateline reported.

When Planned Parenthood’s Texas affiliates were removed from Medicaid eligibility, Linton said the Gulf Coast staff tried to connect their Medicaid patients to other health care providers.

“Unfortunately, what our patients told us is that sometimes it took them three months or more calling around the 20 or 30 practices to find someone who would even take them. Many times they didn’t provide the birth control method that that patient had been accustomed to receiving,” Linton said.

Bursch and other Alliance Defending Freedom attorneys argue that if Planned Parenthood stopped providing abortions in South Carolina, Medicaid funding could be restored.

Planned Parenthood Federation of America attorney Catherine Peyton Humphreville said that South Carolina does allow some abortions to be provided in the state.

“At no point has anyone asserted that Planned Parenthood South Atlantic is not complying with South Carolina law,” Humphreville said.

No one has questioned the quality of care that the organization provides, they said, and the idea that Planned Parenthood can be punished for simply advocating abortion “has serious First Amendment issues.”

On Capitol Hill

Anti-abortion Republicans in Congress are pushing bills to “defund Planned Parenthood” and other abortion providers, including independent clinics, nationwide. Unlike previous sessions when Congress faced gridlock, legislation could advance this year given the GOP trifecta of power in Washington, D.C.

U.S. Missouri Sen. Josh Hawley filed legislation on Jan. 16 that would prohibit federal funding from going to organizations that provide abortions, referrals and the like, with the stated intention of cutting funds from “Planned Parenthood and abortion providers across the nation.” A 2019 rule passed by the Trump administration blocked $60 million in federal funds from flowing to the organization, Hawley said, before the rule was rescinded under Biden.

The Hyde Amendment, a provision approved annually by Congress since 1977, already prevents federal funds from covering the costs of abortion unless the pregnancy stemmed from rape or incest, or the patient could die in child birth.

Planned Parenthood Federation of America President and CEO Alexis McGill Johnson said the organization is prepared to defend itself from both state-level and national attacks.

“The most immediate focus is going to be on the Medicaid defund [bills] in Congress, and that has a direct tie to the Supreme Court case,” McGill Johnson said. “That fight looks like doing everything we can to defeat, delay, to litigate, to mitigate every effort that is trying to put sexual and reproductive health care out of reach.” 

Reproductive rights supporters marched in Phoenix to mark Roe v. Wade’s anniversary in January 2024. Arizona voters approved an amendment restoring abortion access up to fetal viability in the fall. (Photo by Gloria Rebecca Gomez/Arizona Mirror)

Erika Christensen decided to become a patient advocate for abortion later in pregnancy after she had to travel from New York to Colorado to get a third-trimester abortion.

Christensen found out her wanted pregnancy wasn’t viable around 30 weeks. At that time in 2016, New York banned abortion after 24 weeks of pregnancy, and only allowed abortions after that limit to save a patient’s life.

She and her husband were able to borrow thousands of dollars from her mother and put last-minute travel funds on a credit card to access abortion care across the country, Christensen told States Newsroom.

“At every stage, I realized how many pieces had to be in the perfect place for me to be able to do that, to be able to get this urgent health care that I desperately needed,” she said.

When she and her husband returned home to New York, a lawyer at the state American Civil Liberties Union affiliate reached out and asked if they wanted to be advocates. They led a grassroots effort to get legislation passed in 2019 that protected abortions after 24 weeks for fetal abnormalities and to preserve a patient’s health.

The Reproductive Health Act also decriminalized abortion later in pregnancy and allowed health care providers besides physicians to perform abortions. Former Democratic Gov. Andrew Cuomo signed the bill into law on Jan. 22, 2019, the anniversary of the U.S. Supreme Court’s Roe v. Wade ruling that protected the right to an abortion nationally.

This year would have marked the 52nd anniversary of Roe, which ensured abortion rights until fetal viability, when a fetus can survive outside the womb — generally thought to be around 24 weeks. Only about 1% of all abortions in the United States happen after that point, typically for medical reasons, research shows.

But a conservative-majority bench overturned Roe nearly three years ago, upending abortion access across the nation with the Dobbs v. Jackson Women’s Health Organization decision. States rolled out a patchwork of varied health care restrictions.

Twelve states ban most abortions today, while voters in 10 approved ballot measures enshrining the right into state constitutions. Most of the states with constitutional protections have fetal viability limits.

“Advocates, activists and folks in the movement have different opinions about how we reach the ideal policy on reproductive rights and justice, and initiatives and laws may vary from state to state depending on the political realities that we see,” said Ashley All, president of Kansas Coalition for Common Sense, who has worked on several successful abortion-rights initiatives.

Some within the reproductive rights movement argue that gestational bans on abortion later in pregnancy cause patients harm, and say that the protections of Roe — the 1973 Supreme Court said abortion is a privacy right based on the due process clause of the 14th Amendment — are insufficient.

Renee Bracey Sherman is the founder of the nonprofit WeTestify, a nonprofit devoted to evaluating and shifting the narrative around abortion.

“Allowing the public to vote on personal medical decisions is wrong and completely ridiculous,” she said. “But somehow it’s acceptable with abortion, and then doubly acceptable when it comes to later abortion. We have a population that does not understand how anatomy works, how pregnancy works, how abortions happen, and why people need later abortions.”

In pregnancy, “viability” isn’t straightforward and can be used in more than one way. The word can reference whether a pregnancy is expected to develop normally or if it could lead to a miscarriage, according to the American College of Obstetrics and Gynecology. And fetal viability is the point in pregnancy when a fetus is able to survive outside of the womb. Premature babies have a 42% to 59% chance of survival at 24 weeks, according to ACOG and the Society for Maternal-Fetal Medicine.

Many states only allow abortion after 24 weeks in cases of fetal anomalies or if the patient’s life or health is at risk. Alaska, Colorado, New Jersey, New Mexico, Oregon, Vermont and Washington, D.C., have no fetal viability limits on abortion.

ACOG, the national OB-GYN organization, “strongly opposes policy makers defining viability or using viability as a basis to limit access to evidence-based care” and said the decision to terminate a pregnancy should be between patients and medical providers.

Viability language in policymaking stemmed from the Roe decision in 1973, according to Adrienne Ramcharan, assistant director of state policy at Physicians for Reproductive Health and MiQuel Davies, the former public policy director at the organization.

“While this framing was built into the law, researchers and medical providers who care for pregnant people recognize that viability is not a set point in time,” Ramcharan and Davies wrote in August 2024. “Instead, it occurs along a continuum shaped by an individual’s medical history, access to medical care, and demographic characteristics among other things.”

Later abortion care is criminalized and stigmatized, Christensen said, causing the cost of care to go up. Plus, abortion providers willing to offer the procedure later in pregnancy are scarce.

“I have the benefit of having directly experienced a viability ban and knowing in my core how unjust it was, how my humanity was erased, my dignity was erased,” Christensen said.

She is the co-author of a memo published last year titled Abortion Justice Now. The authors wrote that they reject efforts to restore Roe-era limits into abortion policy.

“Gestational and viability limits will disproportionately impact the most marginalized among us, either denying them critical care or pulling families toward financial instability,” they wrote. “These limits will result in an inequitable ability to exercise rights, allow for criminalization in pregnancy, and ultimately reinforce the dangerous assertion that the government has any role in regulating a pregnant person’s body.”

Abortion opponents, including doctors, sometimes hinge their argument on the concept of fetal viability.

“I think, certainly, beyond the point where a child can survive outside of his or her mother, there would never be a reason you would need to intentionally end that child’s life,” Dr. Christina Francis, chief executive officer at the American Association of Pro-Life Obstetricians and Gynecologists, told lawmakers on a U.S. Senate committee in June, States Newsroom reported.

“You would simply deliver that baby,” Francis said. “You’d take care of mom and you’d take care of baby in an appropriate way.

Patients may seek abortion after fetal viability for several reasons: They receive a fetal fatal diagnosis later in pregnancy, giving birth could risk their life or health, they couldn’t access or afford an abortion earlier, or they didn’t know they were pregnant, according to ACOG.

Polling shows that Americans support abortion in most cases, but not necessarily after fetal viability. A June 2023 poll from Gallup found that 69% of respondents said abortion should be legal in the first three months of pregnancy, while 37% said it should be legal in the second trimester and 22% in the third.

But the nonpartisan public opinion research firm PerryUndem found last year that most public polling on abortion later in pregnancy lacks context. Of those who heard stories about women with complications later in pregnancy who needed to travel out-of-state for abortions, 69% said abortion should be legal in all cases.

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