A new ban on abortion has come to a post-Roe v. Wade Florida. Sort of.
Earlier this year, Gov. Ron DeSantis signed a bill into law banning most abortions after 15 weeks of pregnancy. That bill took effect Friday, just days after the Supreme Court ruled abortion regulation would be left up to individual states.
However, on Thursday, a state judge said he would soon write a temporary order putting the new law on hold.
It’s a confusing situation. But what is clear is that a 15-week ban on abortion would be historic for the Sunshine State. And its passage could portend further bans.
Here’s what to know about the new ban, the legal wrangling and the state of abortion in Florida.
When during a pregnancy is abortion legal in Florida?
State law used to allow abortion until the third trimester, about 24 weeks of pregnancy. That is around the time when a baby begins to become viable outside the womb. Third-trimester abortions were also allowed in cases in which the pregnant person’s life could be at risk, or in which the pregnant person risked “irreversible physical impairment of a major bodily function.”
That would change under a 15-week abortion ban.
As of Friday, until the courts officially intervene, Florida has in place its strictest abortion restriction in half a century. Most abortions will only be legal if performed in the first 15 weeks of pregnancy. The new law includes exceptions for people whose health is threatened by the pregnancy or if their baby has a “fatal fetal abnormality.” Florida’s law was based on the Mississippi law that the court upheld when it struck down Roe.
Will the new law allow a pregnancy to be terminated for medical reasons, to prevent the patient from suffering fatal complications? What if it is a nonviable pregnancy?
Yes. The law permits abortions after 15 weeks if carrying the pregnancy to term would put the pregnant person’s life at risk or cause irreversible physical impairment. The pregnancy can also be terminated if the fetus has a fatal abnormality.
In either case, two physicians must certify the decision in writing. One physician can certify the procedure if no other doctor is available.
Will the new Florida law make exceptions for pregnancies arising from rape, incest or human trafficking?
No. If the abortion is not performed in the first 15 weeks, the law requires the baby must be carried to term. (With the exceptions noted above.)
What’s going on with the legal challenge to the law?
Two abortion rights groups have filed lawsuits challenging the state’s 15-week ban. The first, filed by a coalition of abortion providers, claims that the law violates Florida’s constitutional privacy clause. It sought an injunction to keep the bill from going into effect Friday.
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On Thursday, Leon County circuit Judge John Cooper ruled in that group’s favor. He said the 15-week law is unconstitutional and promised to issue an injunction blocking it. However, Cooper said the move wouldn’t be official until he signed an order — which he said would not happen Thursday. That’s why the law took effect for a brief time beginning Friday.
Keep in mind that higher courts could reverse Cooper’s ruling, allowing the law to go into effect even after it’s blocked.
A South Florida Jewish congregation has also filed a legal challenge claiming that the law violates religious freedom.
What did the U.S. Supreme Court do?
A pair of Supreme Court cases, 1973′s Roe v. Wade and 1992′s Planned Parenthood v. Casey, found abortion to be a federal constitutional right. Because of the precedent set by those two cases, states were not allowed to pass outright bans on the procedure.
In its Dobbs v. Jackson Women’s Health Organization ruling, the Supreme Court overturned the precedent set by both of those cases. Justices allowed a Mississippi law banning most abortions after 15 weeks of pregnancy to stand and found that abortion policy should be left up to individual states. Essentially, the court gave states the right to ban abortion.
It’s not clear whether Congress could also one day impose a national ban.
Does the Supreme Court ruling affect Florida?
The court essentially said Florida had a right to go forward with its 15-week ban — or whatever other ban lawmakers wanted to pass. The abortion restriction on Florida’s books is far from the most stringent in the nation. More than a dozen states have laws that automatically banned abortion when Roe v. Wade was struck down.
What other restrictions might Florida Republicans push for?
Florida Republican lawmakers could pass more stringent abortion regulations at any time now that the precedent set by Roe v. Wade is gone. DeSantis could call a special session calling for lawmakers to outright ban the procedure. Legislative leaders could fashion a less strict ban during the 2023 legislative session. Or the GOP could let the 15-week ban they just passed play out for a couple of years.
Could further abortion restrictions run into trouble in state courts?
This remains an unanswered question for now. In 1989, Florida’s Supreme Court found that the privacy clause in the Florida Constitution protected the right to an abortion. This meant abortion rights were enshrined not just in the U.S. Constitution, but in the state Constitution as well. Even with Roe v. Wade overturned, abortion rights advocates can still lean on the state’s founding document. (On Thursday, they did just that.)
But the current Florida Supreme Court is much different than the one that made that 1989 ruling. The court is comprised of Republican appointees. They could view Florida’s Constitution and the rights it provides much differently than the 1989 court.
Will minors be able to get an abortion under Florida’s 15-week law?
Yes. Florida’s new law does not impose any new age restrictions on abortion access. However, as of July 2020, minors are required to have consent from a parent or guardian before terminating a pregnancy. A minor can get the requirement waived if a judge rules that they are “sufficiently mature” to make the decision by themselves.
Florida minors accounted for about 1,400 abortions in 2019, according to federal data. That’s about 1 out of every 50 abortions performed that year.
What are the criminal penalties for an illegal abortion in Florida?
According to state law, anyone who “willfully performs, or actively participates in, a termination of pregnancy” could be charged with a third-degree felony.
In some specific situations, state criminal penalties only apply to the person who performs the abortion. For example, a doctor who performs an abortion on a minor who has not notified their parents is subject to a criminal penalty, but the minor is not.
How many abortions are performed in Florida, and how many would be affected by the new law?
Florida reported that about 80,000 abortions were performed in 2021. About 6% of those — 4,800 abortions — were performed in the second trimester, after 12 weeks of pregnancy.
Of those second-trimester abortions, three were performed in cases of incest and 14 were performed in cases of rape. Those must all be carried to term after 15 weeks under the new law.
State data doesn’t specify when during a trimester an abortion is performed, so it’s unclear precisely how many abortions would be affected by the 15-week ban. However, according to federal data from 2019, post-15 week abortions accounted for about 2% of all procedures in Florida.
Who is getting abortions in Florida?
More than 60% of abortions in the state in 2019 were performed on those who already have children, according to the CDC. Most were in their 20s, and nearly 90% were unmarried.
Many parents decide that they don’t have the financial means or resources to raise and care for another child, said Alison Yager, director of the Florida Health Justice Project.
“They’re recognizing that adding another child to their household is going to strain resources beyond what they think is good for their family,” she told the Times.
More than 4,000 of those people had four or more children.
Abortions were evenly split among Black, white and Hispanic Floridians. Black residents were more likely to rely on abortion services, adjusting for population.
Will medication abortion options still be allowed in Florida under the new law?
Medication abortions are still available but subject to the 15-week ban.
Using medication to induce abortion is an increasingly popular option for people who are up to 10 weeks pregnant. As of 2020, medication abortion accounted for the majority of all U.S. abortions, according to a survey conducted by the Guttmacher Institute, a research group that favors abortion rights.
In Florida, only licensed physicians can prescribe the two-part treatment, and the first pill has to be taken in a clinic or hospital. The second medication can be taken at home. Many clinics require that patients schedule a follow-up appointment two weeks later.
The 15-week law that went into effect Friday also requires abortion providers to count the number of medicine-induced abortions each month and report that number to the state.
How do medication abortions work?
The treatment consists of two medications taken over 48 hours. The first medication, mifepristone, terminates the pregnancy, and the second, misoprostol, helps the body expel it.
A medication abortion doesn’t require surgery or anesthesia and can be safely done in a clinic, in a doctor’s office or at home with a follow-up appointment one to two weeks later, according to federal health officials.
The treatment is only an option in the first 10 weeks of pregnancy and cannot be performed on patients who have an intrauterine device (IUD), severe heart or lung disease or bleeding disorders, or patients who take blood thinners or certain types of steroid medications.
Can Florida patients receive abortion pills prescribed remotely by out-of-state doctors?
No. Under state law, the prescribing physician must meet with the patient in person at least 24 hours before the treatment.
Federal regulators as of December 2021 relaxed restrictions on medication abortions, allowing doctors to prescribe abortion medications online or over the phone and pharmacies to send the medication through the mail.
Although Florida law doesn’t ban telehealth prescriptions outright, the in-person requirement means they aren’t an option for Florida residents seeking an abortion.
Some groups, like Aid Access, have sought to circumvent state law by using physicians and pharmacies located abroad, outside U.S. legal jurisdiction.
• • •
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