Florida’s Criminal Laws for Terminating a Pregnancy [Abortion] after 6 Gestational Weeks

Florida Statute Section 390.0111, entitled “Termination of pregnancies,” now prohibits a woman and her doctor from terminating a pregnancy at 6 gestational weeks instead of 15 weeks. Gestational weeks are determined by counting from the first day of the woman’s last menstrual period, not the date of conception. Most women would not even realize they are pregnant at 6 gestational weeks since their period might only be two weeks late by that time.

As a practical matter, it will be difficult to get an abortion in Florida, even within 6 gestational weeks, because of this change in the law. Prior to these changes in the law, the U.S. Center for Disease Control and Prevention data showed more than 90% of abortions take place in the first trimester (until around 13 weeks of pregnancy).

Before the 2022 amendments, those criminal prohibitions on abortion only applied to the “third trimester of pregnancy.” So first, let’s look at these amendments over the past 4 years. The “amendment notes” show the progression:

• The 2020 amendment by s. 1, ch. 2020-147, in the first sentence of (12)(e), substituted “a felony of the third degree” for “a misdemeanor of the first degree” and “s. 775.082, s. 775.083, or s. 775.084” for “s. 775.082 or s. 775.083”.
• The 2022 amendment by s. 4, ch. 2022-69, in the introductory language of (1), substituted “after gestational age of 15 weeks” for “in third trimester” in the subsection heading and “A physician may not perform a termination of pregnancy if the physician determines the gestational age of the fetus is more than 15 weeks” for “No termination of pregnancy shall be performed on any human being in the third trimester of pregnancy”; and added (1)(c).
• The 2023 amendment by s. 4, ch. 2023- 21, in the introductory language of (1), substituted “6 weeks” for “15 weeks” twice, “may not knowingly perform or induce a termination” for “may not perform a termination”; substituted “The pregnancy has not progressed to the third trimester” for “The fetus has not achieved viability under s. 390.01112” in (c); added (1)(d); rewrote (2), which formerly read: “Performance by physician required. No termination of pregnancy shall be performed at any time except by a physician as defined in s. 390.011”; deleted “or s. 390.01112” following “of this section” in (10)(a) and (10)(b).

Criminal Penalties for an Abortion in Florida

When could someone go to jail for “participating in an abortion” performed before 6 gestational weeks? Section Section 390.0111(10) explains the penalties for violations as follows:

• (10) Penalties for violation. Except as provided in subsections (3), (7), and (12):
  • (a) Any person who willfully performs, or actively participates in, a termination of pregnancy in violation of the requirements of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Guess what? A woman getting an abortion necessarily “participates in” the termination of the pregnancy. So, any suggestion that women won’t be prosecuted is absurd since the statute provides that a woman getting an abortion after 6 weeks can be convicted of a third-degree felony. This new law leaves the ability to prosecute women for having an abortion up to the discretion of prosecutors.

As a practical matter, there will be no abortion providers in Florida after May 1, 2024, providing abortions before 6 weeks. It is effectively a ban on getting an abortion in Florida.

Vote Yes on Florida Amendment 4, Right to Abortion Initiative (2024)

After women in Florida live under this ban on the right to choose for 6 months, they will get a chance to vote on yes on on Florida Amendment 4, Right to Abortion Initiative (2024).

Florida Amendment 4, Right to Abortion Initiative (2024), is an initiated constitutional amendment on the November 5, 2024 ballot. A “yes” vote supports establishing a constitutional right to abortion before fetal viability. A 60% supermajority vote is required for the approval of the amendment.

Amendment 4 would provide a constitutional right to abortion before fetal viability (estimated to be around 24 weeks) or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. See Florida Division of Elections, “Initiative #23-07,” accessed May 12, 2023.

Amendment 4 would add the following language would be added to the state constitution:

“Except as provided in Article X, Section 22, no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.”

If passed, Amendment 4 would NOT impact the Florida legislature’s authority to enact a law requiring the parents of a minor to be notified if their child is seeking an abortion, with exceptions that can be attained through a judicial waiver.

Statutory Langage of Florida Statute Section 390.0111

I listed the statutory language below:

§ 390.0111. Termination of pregnancies. [Effective upon contingency being met]

(1) Termination after gestational age of 6 weeks; when allowed. A physician may not knowingly perform or induce a termination of pregnancy if the physician determines the gestational age of the fetus is more than 6 weeks unless one of the following conditions is met:
(a) Two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy 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.
(b) The physician certifies in writing that, in reasonable medical judgment, there is a medical necessity for legitimate emergency medical procedures for termination of the pregnancy to save the pregnant woman’s life or avert a serious risk of imminent 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.
(c) 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.
(d) The pregnancy is the result of rape, incest, or human trafficking and the gestational age of the fetus is not more than 15 weeks as determined by the physician. At the time the woman schedules or arrives for her appointment to obtain the abortion, she must provide a copy of a restraining order, police report, medical record, or other court order or documentation providing evidence that she is obtaining the termination of pregnancy because she is a victim of rape, incest, or human trafficking. If the woman is 18 years of age or older, the physician must report any known or suspected human trafficking to a local law enforcement agency. If the woman is a minor, the physician must report the incident of rape, incest, or human trafficking to the central abuse hotline as required by s. 39.201.

(2) In-person performance by physician required. Only a physician may perform or induce a termination of pregnancy. A physician may not use telehealth as defined in s. 456.47 to perform an abortion, including, but not limited to, medical abortions. Any medications intended for use in a medical abortion must be dispensed in person by a physician and may not be dispensed through the United States Postal Service or by any other courier or shipping service.

(3) Consents required. A termination of pregnancy may not be performed or induced except with the voluntary and informed written consent of the pregnant woman or, in the case of a mental incompetent, the voluntary and informed written consent of her court-appointed guardian.
(a) Except in the case of a medical emergency, consent to a termination of pregnancy is voluntary and informed only if:
1. The physician who is to perform the procedure, or the referring physician, has, at a minimum, orally, while physically present in the same room, and at least 24 hours before the procedure, informed the woman of:
a. The nature and risks of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision of whether to terminate a pregnancy.
b. The probable gestational age of the fetus, verified by an ultrasound, at the time the termination of pregnancy is to be performed.
(I) The ultrasound must be performed by the physician who is to perform the abortion or by a person having documented evidence that he or she has completed a course in the operation of ultrasound equipment as prescribed by rule and who is working in conjunction with the physician.
(II) The person performing the ultrasound must offer the woman the opportunity to view the live ultrasound images and hear an explanation of them. If the woman accepts the opportunity to view the images and hear the explanation, a physician or a registered nurse, licensed practical nurse, advanced practice registered nurse, or physician assistant working in conjunction with the physician must contemporaneously review and explain the images to the woman before the woman gives informed consent to having an abortion procedure performed.
(III) The woman has a right to decline to view and hear the explanation of the live ultrasound images after she is informed of her right and offered an opportunity to view the images and hear the explanation. If the woman declines, the woman shall complete a form acknowledging that she was offered an opportunity to view and hear the explanation of the images but that she declined that opportunity. The form must also indicate that the woman’s decision was not based on any undue influence from any person to discourage her from viewing the images or hearing the explanation and that she declined of her own free will.
(IV) Unless requested by the woman, the person performing the ultrasound may not offer the opportunity to view the images and hear the explanation and the explanation may not be given if, at the time the woman schedules or arrives for her appointment to obtain an abortion, a copy of a restraining order, police report, medical record, or other court order or documentation is presented which provides evidence that the woman is obtaining the abortion because the woman is a victim of rape, incest, domestic violence, or human trafficking or that the woman has been diagnosed as having a condition that, on the basis of a physician’s good faith clinical judgment, would create a serious risk of substantial and irreversible impairment of a major bodily function if the woman delayed terminating her pregnancy.
c. The medical risks to the woman and fetus of carrying the pregnancy to term.
The physician may provide the information required in this subparagraph within 24 hours before the procedure if requested by the woman at the time she schedules or arrives for her appointment to obtain an abortion and if she presents to the physician a copy of a restraining order, police report, medical record, or other court order or documentation evidencing that she is obtaining the abortion because she is a victim of rape, incest, domestic violence, or human trafficking.
2. Printed materials prepared and provided by the department have been provided to the pregnant woman, if she chooses to view these materials, including:
a. A description of the fetus, including a description of the various stages of development.
b. A list of entities that offer alternatives to terminating the pregnancy.
c. Detailed information on the availability of medical assistance benefits for prenatal care, childbirth, and neonatal care. xxx

3. The woman acknowledges in writing, before the termination of pregnancy, that the information required to be provided under this subsection has been provided.
Nothing in this paragraph is intended to prohibit a physician from providing any additional information which the physician deems material to the woman’s informed decision to terminate her pregnancy.
(b) If a medical emergency exists and a physician cannot comply with the requirements for informed consent, 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 medical procedures and to the fact 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 reasons for the medical necessity in the patient’s medical records.
(c) Violation of this subsection by a physician constitutes grounds for disciplinary action under s. 458.331 or s. 459.015. Substantial compliance or reasonable belief that complying with the requirements of informed consent would threaten the life or health of the patient is a defense to any action brought under this paragraph.

(4) Standard of medical care to be used in third trimester. If a termination of pregnancy is performed in the third trimester, the physician performing the termination of pregnancy must exercise the same degree of professional skill, care, and diligence to preserve the life and health of the fetus which the physician would be required to exercise in order to preserve the life and health of a fetus intended to be born and not aborted. However, if preserving the life and health of the fetus conflicts with preserving the life and health of the pregnant woman, the physician must consider preserving the woman’s life and health the overriding and superior concern.

(5) Partial-birth abortion prohibited; exception.
(a) No physician shall knowingly perform a partial-birth abortion.
(b) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section for a conspiracy to violate the provisions of this section.
(c) This subsection shall not apply to a partial-birth abortion that is 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.

(6) Experimentation on fetus prohibited; exception. No person shall use any live fetus or live, premature infant for any type of scientific, research, laboratory, or other kind of experimentation either prior to or subsequent to any termination of pregnancy procedure except as necessary to protect or preserve the life and health of such fetus or premature infant.

(7) Fetal remains. Fetal remains shall be disposed of in a sanitary manner pursuant to s. 381.0098 and rules adopted thereunder. Failure to dispose of fetal remains in accordance with this subsection is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(8) Refusal to participate in termination procedure. Nothing in this section shall require any hospital or any person to participate in the termination of a pregnancy, nor shall any hospital or any person be liable for such refusal. No person who is a member of, or associated with, the staff of a hospital, nor any employee of a hospital or physician in which or by whom the termination of a pregnancy has been authorized or performed, who shall state an objection to such procedure on moral or religious grounds shall be required to participate in the procedure which will result in the termination of pregnancy. The refusal of any such person or employee to participate shall not form the basis for any disciplinary or other recriminatory action against such person.

(9) Exception. The provisions of this section shall not apply to the performance of a procedure which terminates a pregnancy in order to deliver a live child.

(10) Penalties for violation. Except as provided in subsections (3), (7), and (12):
(a) Any person who willfully performs, or actively participates in, a termination of pregnancy in violation of the requirements of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Any person who performs, or actively participates in, a termination of pregnancy in violation of this section which results in the death of the woman commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(11) Civil action pursuant to partial-birth abortion; relief.
(a) The father, if married to the mother at the time she receives a partial-birth abortion, and, if the mother has not attained the age of 18 years at the time she receives a partial-birth abortion, the maternal grandparents of the fetus may, in a civil action, obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.
(b) In a civil action under this section, appropriate relief includes:
1. Monetary damages for all injuries, psychological and physical, occasioned by the violation of subsection (5).
2. Damages equal to three times the cost of the partial-birth abortion.

(12) Infants born alive.
(a) An infant born alive during or immediately after an attempted abortion is entitled to the same rights, powers, and privileges as are granted by the laws of this state to any other child born alive in the course of natural birth.
(b) If an infant is born alive during or immediately after an attempted abortion, any health care practitioner present at the time shall 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.
(c) An infant born alive during or immediately after an attempted abortion must be immediately transported and admitted to a hospital pursuant to s. 390.012(3)(c) or rules adopted thereunder.
(d) A health care practitioner or any employee of a hospital, a physician’s office, or an abortion clinic who has knowledge of a violation of this subsection must report the violation to the department.
(e) A person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. This subsection shall not be construed as a specific provision of law relating to a particular subject matter that would preclude prosecution of a more general offense, regardless of the penalty.
(f) This subsection does not affirm, deny, expand, or contract any legal status or legal right applicable to any member of the speciesHomo sapiensat any point prior to being born alive as defined in s. 390.011.

(13) Failure to comply. Failure to comply with the requirements of this section constitutes grounds for disciplinary action under each respective practice act and under s. 456.072.

(14) Rules. The applicable boards, or the department if there is no board, shall adopt rules necessary to implement the provisions of this section.

(15) Use of public funds restricted. A state agency, a local governmental entity, or a managed care plan providing services under part IV of chapter 409 may not expend funds for the benefit of, pay funds to, or initiate or renew a contract with an organization that owns, operates, or is affiliated with one or more clinics that are licensed under this chapter and perform abortions unless one or more of the following applies:
(a) All abortions performed by such clinics are:
1. On fetuses that are conceived through rape or incest; or
2. Are medically necessary to preserve the life of the pregnant woman or to avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman, other than a psychological condition.
(b) The funds must be expended to fulfill the terms of a contract entered into before July 1, 2016.
(c) The funds must be expended as reimbursement for Medicaid services provided on a fee-for-service basis.