Florida Abortion Law: Gestational Age Restrictions Explained

Abortion law in Florida is a highly contested topic, with a history of legal challenges and reversals. The current abortion ban in the state is set at six weeks, with exceptions for victims of rape, incest, or human trafficking, but only if a police report is filed before 15 weeks of pregnancy. This six-week ban took effect on May 1, 2024, and has been challenged by abortion rights activists, who have proposed an amendment to protect abortion rights, to be voted on in November 2024.

Exceptions to the abortion ban

Florida's abortion ban, which came into effect on May 1, 2024, has four exceptions:

In cases of rape, incest, or human trafficking

If the woman can provide evidence, such as a restraining order, police report, medical record, or other official documentation, that the pregnancy is a result of rape, incest, or human trafficking, abortion is allowed within 15 weeks of gestational age. This exception is only valid until the 15th week of pregnancy and requires the woman to make two visits to a medical facility 24 hours apart to obtain an abortion.

In cases of fatal fetal abnormality

Before the third trimester, if two doctors certify in writing that the fetus has a fatal abnormality, abortion is permitted.

To save the life of the pregnant woman or avert serious risk of substantial and irreversible physical impairment

If one or two doctors certify in writing 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 other than a psychological condition, abortion is allowed at any time.

Medical necessity for legitimate emergency medical procedures

If one doctor certifies in writing that there is a medical necessity for legitimate emergency medical procedures to save the pregnant woman's life or avert a serious risk of substantial and irreversible physical impairment, and another physician is not available for consultation, abortion is permitted.

It is important to note that these exceptions are highly regulated and difficult to access in practice. For example, law enforcement involvement is often required to document rape and incest, creating barriers for survivors to access abortion care. Additionally, the vague and narrow definitions used in the exceptions make it challenging for physicians to determine if a patient's condition qualifies for an exception.

Ultrasound requirements

• Verification of Gestational Age: Ultrasound examinations are mandated to verify the gestational age of the fetus accurately. The probable gestational age, as determined by the ultrasound, must be communicated to the pregnant woman at least 24 hours before the abortion procedure. This requirement ensures that both the physician and the patient have accurate information about the stage of the pregnancy.
• Offer to View Ultrasound Images: According to Florida law, the person performing the ultrasound must offer the pregnant woman the opportunity to view the live ultrasound images and provide a verbal explanation of the images. This provision ensures that the patient is fully informed about the development stage of the fetus. The patient has the right to decline the offer to view and hear the explanation of the ultrasound images without any pressure or undue influence.
• Informed Consent: The ultrasound results are a critical component of obtaining informed consent for the abortion procedure. The pregnant woman must acknowledge in writing that she has received information about the gestational age of the fetus, as determined by the ultrasound examination. This process ensures that the patient understands the nature and risks of the abortion procedure and can make an informed decision.
• Documentation and Reporting: Proper documentation of the ultrasound examination is required. The person performing the ultrasound must complete a form acknowledging that the patient was offered the opportunity to view the images and hear the explanation. Additionally, the patient must sign a form indicating their decision to accept or decline the offer, ensuring a clear record of the process.
• Qualified Personnel: The law specifies that the ultrasound must be performed by qualified personnel. It can be conducted by the physician who will perform the abortion or by an individual with documented training in operating ultrasound equipment, working in conjunction with the physician. This requirement ensures the accuracy and reliability of the ultrasound results.
• Exceptions for Victims of Abuse: In cases where the pregnant woman presents documentation that she is a victim of rape, incest, domestic violence, or human trafficking, the requirement to offer the viewing of ultrasound images may be waived. This exception recognizes the sensitivity and trauma associated with such situations and aims to protect the patient's emotional well-being.

The ultrasound requirements in Florida's abortion laws aim to balance the need for accurate information and patient autonomy. By providing detailed information about the gestational age and offering the opportunity to view the ultrasound images, patients can make informed decisions about their pregnancy. At the same time, the exceptions for victims of abuse demonstrate a recognition of the potential emotional distress and respect for the patient's privacy in such circumstances.

Consent requirements

Florida's abortion law requires the voluntary and informed written consent of the pregnant woman. This involves an in-person meeting with the physician at least 24 hours before the procedure or treatment, along with other requirements. For a minor, there must be consent from a parent or legal guardian, or a court order granting a waiver of such consent (judicial bypass).

Florida is one of only six states that require both consent and notification. However, if you get consent from your parent or legal guardian, or a judicial waiver, that will also automatically satisfy the notification requirement.

In the case of a medical emergency, a physician may terminate a pregnancy if he or she has obtained 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. If a second physician is not available for a corroborating opinion, the physician may proceed but shall document the reasons for the medical necessity in the patient's medical records.

The judicial bypass process allows minors who cannot involve a parent or legal guardian in their decision to ask a judge to let them get an abortion without parental involvement. This process involves applying in person at a courthouse and meeting with a court-appointed attorney. The judge must then meet with the minor and their lawyer (if they have one) within three business days to hear their request and make a final decision.

In the case of Planned Parenthood of Southwest and Central Florida v. State of Florida, the Florida Supreme Court ruled that the state's right to privacy included a pre-viability right to abortion. However, this decision was reversed in 2024 by a more conservative state supreme court, which concluded that the state privacy clause does not include any protection for a woman's decision to have an abortion.

Minors' rights

In Florida, minors (people under 18) have the right to decide to have an abortion, but state law requires them to involve a parent or legal guardian in their decision. This means that, ordinarily, a minor must obtain the consent of a parent or guardian, and that parent or guardian must be notified of their child's plan to have an abortion. The parent or guardian must sign specific forms provided by the clinic, and these forms must be notarized. Florida is one of only six states that require both consent and notification.

However, there are some exceptions to the requirement for parental consent and notification. Parental consent is not required in the case of a medical emergency (certified by an attending physician) if there is insufficient time to obtain consent, if a court has emancipated the minor, if the minor has a dependent child, or if the minor is or has been married. In these cases, the minor must provide certain documents as proof.

If a minor cannot or does not wish to involve a parent or guardian in their decision, they can ask a judge to grant a judicial bypass, which allows them to obtain an abortion without parental involvement. To obtain a judicial bypass, the minor must apply in person at a courthouse and meet with a court-appointed attorney. Florida law does not require the minor to have a lawyer, but they have the right to request one at no cost. The judge must meet with the minor and their lawyer (if they have one) and make a final decision within three business days.

Penalties for unlawful abortion

Abortion in Florida is generally illegal after six weeks from the woman's last menstrual period. The law came into effect in May 2024 and is one of the most restrictive abortion laws in the country.

Florida law states that anyone who performs or actively participates in an unlawful abortion can be charged with a third-degree felony. This can result in a fine of up to $5,000, imprisonment of up to five years, or both. If the pregnant woman dies as a result of the unlawful abortion, the person responsible can be charged with a second-degree felony, facing a fine of up to $10,000, imprisonment of up to 15 years, or both.

Florida law is silent on whether the pregnant woman herself would face criminal charges for undergoing an unlawful abortion. However, it is important to note that the law specifically refers to those who "perform or actively participate" in the unlawful procedure, which would likely exclude the pregnant woman receiving the abortion.

The penalties for unlawful abortion in Florida are designed to deter people from performing abortions outside of the legal framework. With the recent changes to abortion laws in the state, it is important for individuals to be aware of these penalties and the potential consequences of their actions.

Frequently asked questions