Abortion in Florida
Abortion in Florida is generally illegal after six weeks from the woman's last menstrual period, This law came into effect in May 2024, being approved by Republican Governor Ron DeSantis following its passage in the Florida House of Representatives and the Florida Senate, with only Republican state legislators supporting. Additionally, pregnant women are generally required to make two visits to a medical facility 24 hours apart to be able to obtain an abortion, in a law approved by Republican Governor Rick Scott in 2015.
The exceptions to the 6 week gestational age abortion ban are as follows: within 15 weeks gestational age, if the woman can give evidence from medical or official documentation that the pregnancy is due to rape, incest, or human trafficking; before the third trimester, if two doctors certify a fatal fetal abnormality; and at any time, with doctor' certification, "to save the pregnant woman's life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition". The exceptions to the 24-hour waiting period require evidence from medical or official documentation that the pregnancy is due to rape, incest, domestic violence or human trafficking.
From 1868 to 1972, abortion law in Florida stated that abortion was illegal unless "necessary to preserve the life of such mother", but the Supreme Court of Florida in 1972 ruled that this law was unconstitutionally vague, leading to its repeal. In 1973, the United States Supreme Court decided Roe v. Wade, enshrining abortion as a constitutional right across the United States, until the United States Supreme Court in 2022 decided during Dobbs v. Jackson Women's Health Organization to overturn Roe v. Wade, returning the power to regulate abortion to the state legislatures.
In 1989, the Supreme Court of Florida ruled that the Constitution of Florida's provision for the "right to be let alone and free from governmental intrusion into his private life" extended to a woman's choice to have an abortion. In April 2024, the Supreme Court of Florida overturned its 1989 decision, instead ruling that the Constitution of Florida does not confer a right to abortion, allowing the 15-week abortion ban to remain in effect. The Court's decision also allowed an embryonic heartbeat ban to take effect 30 days after the ruling.
In a simultaneous opinion, the Supreme Court also approved Florida Amendment 4 to proceed to the November 2024 ballot, which would have enshrined a constitutional right to abortion before fetal viability, and after viability when necessary to protect the patient's health as determined by their healthcare provider. The amendment failed to reach the 60% threshold needed to pass, garnering 57% of the vote.
History
1868–1972
Florida's first abortion law was implemented in 1868, lasting until 1972; it stated:Abortion: Every person who shall administer to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter.
Performing abortion; punishment: Whoever with intent to procure miscarriage of any woman unlawfully administers to her, or advises or prescribes for her, or causes to be taken by her, any poison, drug, medicine or other noxious thing, or unlawfully uses any instrument or other means whatever with the like intent, or with intent aids or assists therein, shall, if the woman does riot die in consequence thereof, be punished by imprisonment in the state prison not exceeding seven years, or by fine not exceeding one thousand dollars.
From 1868 to 1972, there were only seven legal cases regarding abortion reported from Florida's appellate courts; an attempt to render the abortion law unconstitutional was rejected in 1963 in Carter v. State. In February 1972, during the case State v. Barquet, the Florida Supreme Court declared that the abortion law was unconstitutional, due to the phrase "unless the same shall have been necessary to preserve the life of such mother" being too vague, with the court's opinion stating that the "duty, and judgment of a physician, the necessity and welfare of the patient, and the rights of both, cannot be subjected to indefinite, uncertain, vague, or unreasonable legislation." Hence, the abortion law was repealed that year.
In April 1972, the Florida legislature implemented a new abortion law, built upon the 1962 Model Penal Code of the American Law Institute. Parts of the law are as follows:
It shall be unlawful to terminate the pregnancy of a human being unless the pregnancy is terminated in an approved facility by a physician who certifies in writing that: To a reasonable degree of medical certainty the continuation of the pregnancy would substantially impair the life or health of the female; There is substantial risk that the continuation of the pregnancy would result in the birth of a child with a serious physical or mental defect; or There is reasonable cause to believe that the pregnancy resulted from rape or incest.
1973–2022
In January 1973, the Supreme Court of the United States decided the case of Roe v. Wade, recognizing abortion as a constitutional right under federal law, thus affecting Florida. In its opinion, SCOTUS created the trimester framework to regulate abortion. During the first trimester, when it was believed that the procedure as safe or safer than childbirth, SCOTUS ruled that a state government could place no restrictions on women's ability to choose to abort pregnancies other than imposing minimal medical safeguards, such as requiring abortions to be performed by licensed doctors. From the second trimester on, SCOTUS ruled that evidence of increasing risks to the pregnant woman's health gave states a compelling interest that allowed them to enact medical regulations on abortion procedures so long as they were reasonable and "narrowly tailored" to protecting mothers' health. From the third trimester on—the point at which a fetus became viable under the medical technology available in the early 1970s—SCOTUS ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health.In 1989, the Supreme Court of Florida ruled in the case of In re: TW that the Florida law, requiring female minors to obtain parental consent in order to obtain an abortion, had violated the Florida Constitution's provision that citizens had the "right to be let alone and free from governmental intrusion into his private life". The Supreme Court of Florida stated that "Florida's privacy provision is clearly implicated in a woman's decision of whether or not to continue her pregnancy... We can conceive of few more personal or private decisions concerning one's body that one can make in a lifetime"; this applied to minors because the Florida Constitution's privacy clause extended to "every natural person".
Florida was one of ten states in 2007 to have a customary informed consent provision for abortions. Abortion providers were required to show women ultrasounds of their fetus before allowing them to have an abortion. In 2013, the Targeted Regulation of Abortion Providers law applied to medically induced abortions as well.
The Republican-controlled Florida legislature in April 2015 passed a bill to require pregnant women to make two visits to a medical facility 24 hours apart to be able to obtain an abortion; in the Florida House of Representatives, most of the House Republicans supported the bill, while most of the House Democrats opposed the bill; in the Florida Senate, only House Republicans supported the bill, and only Senate Democrats opposed the bill. Florida's Republican Governor Rick Scott signed the bill into law in June 2015, to take effect in July 2015. Exceptions for the 24-hour waiting period were allowed if the women could produce medical or official documentation that the pregnancy is due to rape, incest, domestic violence or human trafficking.
The 24-hour waiting period law was challenged in the courts by the American Civil Liberties Union of Florida and the Center for Reproductive Rights, leading to Leon County Chief Circuit Judge Charles Francis blocking the law just before it took effect, as "the court has no evidence in front of it" to determine that the law "is not an additional burden on a woman's right to privacy". The lower court's decision was overturned in February 2016 by the Florida First District Court of Appeal, which lifted the block on the law. The Supreme Court of Florida in April 2016 reinstated the temporary block of the law while considering the case. In February 2017, the Supreme Court of Florida ruled that the law was "presumptively unconstitutional", as "the state impermissibly interferes with women's fundamental right of privacy", and the state thus far "has presented no evidence of a compelling state interest"; however this ruling did not result in the end of the legal case, which was sent back to lower courts.
2022–present
The United States Supreme Court in December 2021 heard oral arguments in the case Dobbs v. Jackson Women's Health Organization, where the justices seemed supportive of taking action against Roe v. Wade. Predicting that the United States Supreme Court would soon rule against Roe v. Wade, several states, including Florida, Idaho and Oklahoma, began taking steps to implement legislation that would restrict abortions.With Republicans still controlling the Florida legislature, the Reducing Fetal and Infant Mortality bill was passed by the Florida House of Representatives in February 2022, then passed by the Florida Senate in March 2022, both with only Republican state legislators supporting and only Democratic state legislators opposing, and then signed into law by Florida's Republican Governor Ron DeSantis in April 2022. The law redefined "gestation" to be "calculated from the first day of the pregnant woman's last menstrual period", and then stated that abortion would be illegal in Florida if a "physician determines the gestational age of the fetus is more than 15 weeks". Exceptions for the abortion ban were allowed for instances to "save the pregnant woman's life", or "avert a serious risk of substantial and irreversible physical impairment of a major bodily function" of the pregnant woman, or if the fetus has a "fatal fetal abnormality".
In April 2022, the case Gainesville Woman Care, LLC v. State was resolved by Leon County Circuit Court Judge Angela Dempsey, that ruled as constitutional the Florida law requiring pregnant women to wait 24 hours after their initial medical consultation to be able to obtain an abortion.
In June 2022, the United States Supreme Court ruled in Dobbs v. Jackson Women's Health Organization, overturning both Roe v. Wade and Planned Parenthood v. Casey, and hence returning the power to regulate abortion to state legislatures.
HB 5 faced legal scrutiny as a state judge moved to block enforcement of the law on July 5, 2022, ruling that the Florida Constitution guaranteed a right to privacy rendered the law unconstitutional. The State of Florida appealed the decision to the Supreme Court of Florida, thereby keeping the law in place while the case was being decided. On June 1, 2022, The American Civil Liberties Union, the ACLU of Florida, the Center for Reproductive Rights, Planned Parenthood Federation of America, and the law firm Jenner & Block filed Planned Parenthood of Southwest and Central Florida, et al. v. State of Florida, et al., a lawsuit on behalf of Florida health care providers. On January 23, 2023, the Supreme Court of Florida accepted a request to hear the petitioner's arguments against House Bill 5.
The Heartbeat Protection Act was passed by the Florida Senate, then passed by the Florida House of Representatives, and then signed into law by Governor Ron DeSantis, all in April 2023. The 2023 bill states that abortion would be illegal in Florida if a "physician determines the gestational age of the fetus is more than 6 weeks". Many women do not yet know that they are pregnant when the fetus is at a gestational age of 6 weeks since the woman's last menstrual period.
There are four exceptions to the six-week gestational age abortion ban.
- "At the time the woman schedules or arrives for her appointment to obtain the abortion", if she can give evidence using "restraining order, police report, medical record, or other court order or documentation" that her pregnancy is due to "rape, incest, or human trafficking", then an abortion can be legally carried out up to a gestational age of 15 weeks.
- Before the third trimester, two doctors "certify in writing that, in reasonable medical judgment, the fetus has a fatal fetal abnormality".
- Two doctors "certify in writing that, in reasonable medical judgment", that abortion "is necessary to save the pregnant woman's life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition."
- One doctor "certifies in writing that, in reasonable medical judgment, there is a medical necessity for legitimate emergency medical procedures" to carry out the abortion "to save the pregnant woman's life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition, and another physician is not available for consultation.
Florida's abortion ban, from six weeks since the pregnant women's last menstrual period, with exceptions, took effect on May 1, 2024. At the time of the ban taking effect, the closest state with laxer abortion restrictions is North Carolina, which allows abortions up to 12 weeks, but has a 72-hour waiting period; for abortions after 12 weeks, the next closest states would be Virginia or Illinois.