Florida Abortion Law: Understanding The Legal Landscape

Abortion law in Florida is a highly contested issue that has seen various changes in recent years. In May 2024, a six-week abortion ban came into effect, with limited exceptions, after being approved by Republican Governor Ron DeSantis. This law prohibits physicians from performing or inducing a termination of pregnancy after six weeks of gestation, unless specific conditions are met. These exceptions include cases of rape, incest, human trafficking, fatal fetal abnormalities, or to protect the life and health of the pregnant woman. The law also mandates a 24-hour waiting period and requires patients to make two visits to a medical facility. The enforcement of this ban has sparked protests and legal challenges, with the Supreme Court of Florida playing a pivotal role in upholding or blocking these restrictions.

Exceptions to the law

Florida's abortion law, which came into effect on May 1, 2024, bans abortions after 6 weeks of pregnancy. However, there are a few exceptions to this law.

Firstly, abortions are permitted beyond 6 weeks if they are necessary to save the life of the pregnant woman or to avert a serious risk of substantial and irreversible physical impairment of a major bodily function, excluding psychological conditions. This exception requires certification from two physicians in writing, confirming that the termination is medically necessary. In emergency situations where another physician is unavailable for consultation, a single physician's certification may be accepted.

Secondly, abortions are allowed if the fetus has a fatal abnormality, provided that the pregnancy has not progressed beyond the third trimester. Again, this exception requires certification from two physicians in writing.

Thirdly, abortions are permitted for pregnancies resulting from rape, incest, or human trafficking, up to 15 weeks of gestation. The pregnant woman must provide documentation as evidence, such as a restraining order, police report, medical record, or other court documents. If the woman is a minor, the incident must be reported to the central abuse hotline, while human trafficking cases involving adults must be reported to local law enforcement.

Additionally, there is an exception for medical emergencies, where a physician may terminate a pregnancy if continuing it would threaten the life of the pregnant woman. In such cases, the physician must obtain at least one corroborative medical opinion and document the reasons for the medical necessity in the patient's records.

Mandatory waiting period

Florida law requires a 24-hour mandatory waiting period for people seeking abortion care. This means abortion patients must appear in person for two appointments at least 24 hours apart to comply with Florida law. There are limited exceptions to this rule, including for victims of rape, incest, domestic violence, or human trafficking, who must provide proper documentation. If a patient has had a miscarriage and there is no fetal cardiac activity, they are also exempt from the 24-hour waiting period and do not need to appear for two appointments.

During the first appointment, a health care professional will perform an ultrasound to confirm the gestational duration of the pregnancy, run any necessary lab work, discuss all options concerning the pregnancy, explain abortion procedures and possible risks, and discuss birth control methods.

The 24-hour waiting period law was initially passed by Florida's Republican-controlled legislature in 2015 and signed into law by then-Governor Rick Scott. The law was challenged in court multiple times, with lower courts blocking it as an "unconstitutional intrusion into women's fundamental right of privacy." However, the Florida Supreme Court upheld the law in 2016 and again in 2017, finding that the state had presented no evidence of a compelling state interest in implementing the waiting period.

The mandatory waiting period is part of a broader set of abortion restrictions in Florida, including a six-week abortion ban that went into effect in May 2024. These restrictions have had a significant impact on abortion access in the state, with patients past six weeks of pregnancy no longer able to receive an abortion in Florida unless they meet one of the limited statutory exceptions.

Ultrasound requirements

The person performing the ultrasound must offer the woman the opportunity to view the live ultrasound images and provide an explanation of what is seen. If the woman accepts, a physician or qualified nurse must contemporaneously review and explain the images before the woman gives informed consent for the abortion procedure. The woman has the right to decline to view and hear the explanation of the ultrasound images, and if she does so, she must complete a form acknowledging this decision.

The ultrasound requirement is intended to provide women with accurate information about the gestational age of the fetus and offer them the opportunity to make an informed decision about their pregnancy. It is part of the informed consent process, which also includes discussing the nature and risks of the procedure, the woman's medical options, and the availability of support services.

The ultrasound requirement is a controversial aspect of Florida's abortion law, with critics arguing that it adds an unnecessary burden and can cause emotional distress to women seeking abortions. Proponents of the requirement argue that it ensures women have comprehensive information to make a decision about their pregnancy.

In addition to the ultrasound requirement, Florida law also includes a mandatory 24-hour waiting period between the ultrasound and the abortion procedure, as well as mandatory counselling and the provision of printed educational materials. These requirements are intended to ensure women have ample time and information to make an informed decision about their pregnancy.

Amendment 4

The amendment has sparked controversy, with some arguing that it would allow abortion up to the moment of birth and eliminate parental consent for minors. Opponents of the amendment include Florida Governor Ron DeSantis, who has stated that the amendment is "very, very extreme." There have also been legal challenges to the amendment, with the state's health department threatening to bring criminal charges against broadcasters airing an ad promoting the amendment.

However, supporters of the amendment argue that it is necessary to protect the health and safety of patients, giving power back to Florida families and their doctors rather than politicians. The amendment has gained endorsements from various organizations, including the ACLU of Florida, Planned Parenthood, and the Florida Women's Freedom Coalition.

The amendment requires a 60% supermajority vote for approval and is expected to have a significant impact on the state's abortion laws if passed.

History of abortion law in Florida

Florida's first abortion law was implemented in 1868 and lasted until 1972. The law stated that abortion was illegal unless "necessary to preserve the life of such mother". In 1972, the Supreme Court of Florida 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. This decision affected Florida, and abortion was legal in the state until the fetus reached a gestational age of 15 weeks.

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 2015, Florida's Republican-controlled legislature passed a bill (HB 633) requiring pregnant women to make two visits to a medical facility 24 hours apart to be able to obtain an abortion. In 2022, anticipating the fall of Roe v. Wade, Florida lawmakers enacted a 15-week abortion ban. In 2023, Florida's Republican-dominated state legislature passed an even stricter law, banning abortions after six weeks of pregnancy. This law took effect in May 2024.

In April 2024, the Supreme Court of Florida overturned its 1989 decision, ruling that the Constitution of Florida does not confer a right to abortion. This allowed the 15-week abortion ban to remain in effect and a six-week abortion ban to take effect 30 days after the ruling.

In November 2024, Floridians will vote on Amendment 4, which would amend the state constitution to prohibit government interference with the right to abortion before fetal viability.

Frequently asked questions