Florida’s New Prohibitions on Abortions after 15 Weeks
Many expect the U.S. Supreme Court will soon overturn the Roe v. Wade decision that legalized abortion. Once that occurs, many fear that police and prosecutors will come between a woman and her doctor as important reproductive decisions are made.
The State Attorney in Florida’s Thirteenth Judicial Circuit has been vocal on the issue saying:
5/3/2022 on Facebook: “The draft opinion overturns #RoevWade on the basis that there’s no express privacy right in the US Constitution. Leaving aside the foolishness of that argument, the Florida Constitution expressly provides a right to privacy that protects abortion. It would take a colossal amount of hypocrisy to endorse the SCOTUS opinion but ignore that fact.”
5/3/2022 on Facebook: Abortion needs to be safe, legal & rare. In response, some pro-life friends say it’s a moral issue and aren’t comfortable with the judicial branch, rather than the legislative, defining that morality. But overturning Roe means SCOTUS is still defining our morals–and defining it according to 5 people whose morals are out of step with the vast majority of Americans. The Constitution isn’t designed to make us comfortable. It’s designed to make us free.
Nevertheless, Florida just passed 2022 House Bill 5. To understand the new legislation, it is important to read the statute itself and to look at the staff analysis report.
According to the House of Representatives Staff Analysis for Florida’s 2022 House Bill 5, there were 209,645 live births in Florida in 2020. This number came from the report on the Total Resident Live Births, Department of Health.
Citing the “Reported Induced Terminations of Pregnancy by Reason, by Trimester, Agency for Health Care Administration,” the report concluded that in 2020, “there were 74,868 abortion procedures performed in [Florida]. Of those:
- 70,594 were performed in the first trimester (12 weeks and under);
- 4,274 were performed in the second trimester (13 to 24 weeks); and
- None were performed in the third trimester (25 weeks and over).”
Florida’s 2022 House Bill 5 entitled “Reducing Fetal and Infant Mortality,” replaces the previously imposed prohibitions against abortions during the third trimester. The statute also imposed additional reporting requirements on those who perform abortions.
Florida was one of the most permissive states for abortions in the southeast since it previously allowed abortion through the second trimester of pregnancy. According to the US Centers for Disease Control and Prevention, in 2019, Florida had the third-highest per capita rate of abortions in the country at 18.5 per 1,000 women.
Under the new legislation that takes effect July 1, 2022, Florida law prohibits an abortion if the physician performing the abortion determines the gestational age of the fetus is more than 15 weeks, as calculated from the first day of the woman’s last menstrual period.
Pursuant to Section 390.0111(10), F.S., any person who willfully performs, or actively participates in, an abortion in violation of these statutory requirements commits a third-degree felony. If the woman dies, the crime can be charged as a second-degree felony.
Exceptions to the 15 Week Rule Prohibiting Abortions
The new legislation retains the same medical exception to prohibited abortions that previously existed under Florida law including:
- 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; or
- one 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.
Additionally, the new legislation adds an exception for fatal fetal abnormalities if two physicians certify in writing that, in reasonable medical judgment, the fetus has a fatal fetal abnormality.
Under the statute, a fetal anomaly is a terminal condition that, in reasonable medical judgment, regardless of the provision of life-saving medical treatment, is incompatible with life outside the womb and will result in death upon birth or imminently thereafter.
Penalties for Violations of Florida’s Abortion Law
Pursuant to Florida Statute 390.0111(10) for Termination of pregnancies, except as provided in subsection 3, 7, and 12, the penalties include:
(a) Any person who willfully performs, or actively participates in, a termination of pregnancy in violation of the requirements of this section or s. 390.01112 commits a felony of the third degree, punishable by up to five years in prison;
(b) Any person who performs, or actively participates in, a termination of pregnancy in violation of this section or s. 390.01112 which results in the death of the woman commits a felony of the second degree, punishable by up to 15 years in prison.
For crimes related to partial-birth abortions, subsection 5(b), provides that 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.”
Under subsection 3, failure to comply with the requirements of informed consent by a physician constitutes grounds for disciplinary action under s. 458.331 or s. 459.015.
Under subsection 7, the failure to properly dispose of fetal remains can be charged as a misdemeanor of the first degree, punishable by up to 12 months in jail.
Under subsection 12, the failure to preserve the life and health of the infant born alive during an attempted abortion can be charged as a felony of the third degree, punishable by up to five years in prison.
How Does Florida Define the Term “Trimester”?
Under Section 390.011 (12), Florida Statutes, the term “trimester” means one of the following three distinct periods of time in the duration of pregnancy:
- “first trimester” is the period of time from fertilization through the end of the 11th week of gestation;
- “second trimester” is the period of time from the beginning of the 12th week of gestation through the end of the 23rd week of gestation; and
- “third trimester” is the period of time from the beginning of the 24th week of gestation through birth.
The term gestation is the period of development during the carrying of an embryo and later the fetus. The gestation period is the time interval of a gestation.
For humans, gestational age refers to the fertilization age plus two weeks which is approximately the duration since the mother’s last menstrual period (LMP) began.