Florida Abortion Law: Exploring Exception Scenarios

Florida's abortion law, which bans abortions after six weeks of pregnancy, came into effect in May 2023. The law includes some exceptions, such as allowing abortions to save the life of the pregnant woman, or in cases of rape, incest, or human trafficking, provided that the woman presents the required documentation. However, these exceptions have been criticised as unworkable in practice, with doctors facing prosecution if they perform abortions outside of these narrow exceptions.

Exceptions for victims of rape, incest, or human trafficking

Florida's abortion law, which came into effect on May 1, 2024, has been described as having no "real" exceptions for victims of rape, incest, or human trafficking. While the law does allow for abortions in cases of rape, incest, or human trafficking, there are several conditions and requirements that make it difficult for survivors to access abortion services.

Firstly, the law only permits abortions for these cases up to 15 weeks of pregnancy. This means that survivors must often act within a very limited time frame to obtain an abortion. Additionally, survivors are required to provide documentation of their assault, such as a restraining order, police report, medical record, or other court orders. This can be a significant barrier, as many survivors are reluctant to report sexual violence to the police due to fear of retaliation or a lack of trust in the justice system.

Furthermore, the law places the burden on physicians, requiring two physicians to certify in writing that the abortion is necessary to protect the pregnant woman's health or life. Physicians may be hesitant to do so due to the risk of criminal penalties and the potential loss of their medical license. This requirement further restricts access to abortion services for survivors of rape, incest, or human trafficking.

The combination of strict gestational limits, documentation requirements, and physician certification makes it challenging for survivors of rape, incest, or human trafficking to obtain abortions in Florida. The law's exceptions for these cases are narrow and difficult to meet, effectively limiting the ability of survivors to make decisions about their own bodies and futures.

Exceptions for fatal foetal diagnosis

Florida's abortion law, which came into effect in May 2024, prohibits abortions after six weeks of pregnancy. However, there are exceptions to this law, including in cases of fatal foetal diagnosis.

In the case of a fatal foetal diagnosis, abortions are permitted before the third trimester if two doctors certify in writing that, based on reasonable medical judgement, the foetus has a fatal abnormality or fatal foetal anomaly. This exception is maintained in addition to current exceptions that allow abortions to save the life and health of the mother.

The fatal foetal diagnosis exception is outlined in Florida's abortion law, which states that a termination of pregnancy after six weeks of gestation is allowed if:

> "The pregnancy has not progressed to the third trimester and two physicians certify in writing that, in reasonable medical judgment, the fetus has a fatal fetal abnormality."

This exception recognises that in cases where a foetus is diagnosed with a fatal abnormality, it may be necessary to terminate the pregnancy to prevent serious health risks to the mother.

It is important to note that the law also requires physicians to exercise the same degree of professional skill, care, and diligence to preserve the life and health of the foetus as they would for a fetus intended to be born. However, if preserving the life and health of the foetus conflicts with preserving the life and health of the pregnant woman, the law states that the physician must consider the woman's life and health as the overriding and superior concern.

Exceptions to save the life of the mother

Florida's abortion law, which came into effect on May 1, 2024, allows for exceptions to save the life of the mother. The law states that a physician may perform or induce a termination of pregnancy after the gestational age of six weeks if two physicians certify in writing that the termination 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 other than a psychological condition.

In the case of a medical emergency, a physician may terminate a pregnancy if they obtain at least one corroborative medical opinion attesting to the medical necessity for emergency procedures and that, to a reasonable degree of medical certainty, the continuation of the pregnancy would threaten the life of the pregnant woman.

The law also allows for exceptions to the rule that only a physician may perform or induce a termination of pregnancy. In the case of a medical emergency, any health care practitioner present must humanely exercise the same degree of professional skill, care, and diligence to preserve the life and health of the infant as a reasonably diligent and conscientious health care practitioner would render to an infant born alive at the same gestational age in the course of natural birth.

The law also makes an exception for partial-birth abortions, which are prohibited unless necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury, provided that no other medical procedure would suffice for that purpose.

The 24-hour mandatory delay

Florida's abortion law requires a 24-hour mandatory delay for people seeking abortion care. This means abortion patients must appear in person for two appointments at least 24 hours apart to comply with the law. However, there are limited exceptions to this rule.

The impact on minors

Florida's abortion laws have a significant impact on minors, who are defined as individuals under the age of 18. While minors in Florida have the right to decide to have an abortion, the state's laws require them to involve a parent or legal guardian in their decision. This means that parental notification and consent are mandatory, and the parent or guardian must sign specific forms provided by the clinic, which also need to be notarized. This can pose a challenge for minors who cannot involve their parents or guardians, either due to safety concerns, lack of support, or other reasons.

However, Florida does provide an option for minors to bypass parental involvement through a judicial bypass process. This allows minors to seek an order from a judge to allow them to have an abortion without parental involvement. The judicial bypass is a complex and time-consuming process, and minors must navigate it without legal representation unless they specifically request and are granted a court-appointed lawyer. During the process, judges assess the minor's maturity and ability to make their own decision. The success rate of obtaining a judicial bypass varies across different counties in Florida, with some counties granting almost all petitions while others denying nearly half.

The impact of Florida's abortion laws on minors is further complicated by the state's restrictive abortion policies. Florida currently bans abortion after 15 weeks of pregnancy and requires parental consent for minors, making it challenging for minors to access abortion services. Additionally, the state's abortion laws have been subject to changes and increasing restrictions over the years, creating confusion and uncertainty for minors seeking abortion care.

It is important to note that the judicial bypass process and the impact of Florida's abortion laws on minors are closely tied to the state's legal system and policies. Any changes in the law or judicial interpretations can significantly affect the ease of access to abortion services for minors in Florida.

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