Abortion Bans

AFTER 12 WEEKS

Florida's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks.  Fla. Stat. Ann. §§ 782.30 to .36 (Enacted 2000).

A court held that Florida's ban enacted in 2000 is unconstitutional and issued a permanent injunction prohibiting its enforcement.  The court held that the ban unduly burdens a woman's right to terminate her pregnancy before viability, fails to include an exception to protect women's health, and is unconstitutionally vague.  A Choice for Women v. Butterworth, No. 00-1820-CIV-LENARD/TURNOFF (S.D. Fla. July 11, 2000).  The U.S. Supreme Court previously held that a similar ban that lacks an exception to protect a woman's health and that bans more than one procedure places an undue burden on a woman's right to choose and is unconstitutional.  Stenberg v. Carhart, 530 U.S. 914 (2000).

Florida's unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical illness, or physical injury and every reasonable precaution is taken to preserve the fetus' life.  Fla. Stat. Ann. §§ 782.30 to .36 (Enacted 2000).

In addition, a court held that Florida's earlier ban on abortion procedures is unconstitutional and issued a permanent injunction prohibiting its enforcement.  A Choice for Women v. Butterworth, 54 F. Supp. 2d 1148 (S.D. Fla. 1998).  This law makes the performance of any abortion procedure that falls within a broad definition a felony unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury and no other medical procedure will suffice.  Fla. Stat. Ann. §§ 390.011(6) (Enacted 1998; Last Renumbered 1998; Last Amended 1998), 390.0111(5) (Enacted 1979; Last Renumbered 1998; Last Amended 1998).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling

Florida has a constitutional and enforceable law that provides that a woman may not obtain an abortion until after the attending or referring physician tells her, orally and in person:  (1) the nature and risks of "undergoing or not undergoing the proposed procedure;" (2) the probable gestational age of the fetus; and (3) the medical risks to the woman and the fetus of carrying the pregnancy to term.  She also must be offered state-prepared materials that include a description of the fetus, a list of agencies that offer alternatives to abortion, and information about medical assistance benefits for prenatal care, childbirth, and neonatal care.  Fla. Stat. Ann. § 390.0111(3) (Enacted 1979; Last Amended 1998).

The Florida Supreme Court declared that the oral counseling portion of the law is constitutional.  The Court did not consider the constitutionality of the state-prepared materials.  State v. Presidential Women's Ctr., No. SC04-2186 (Fla. Apr. 6, 2006).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Florida allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply?  Hospitals, hospital staff members, persons associated with or employed by a hospital, or physician employees.

What does the refusal clause allow?  No hospital staff member, person associated with or employed by a hospital, or physician's employee, who objects on moral or religious grounds, may be required to participate in a procedure that results in an abortion.  The refusal of a person to participate may not be a basis for disciplinary or other recriminatory action.  In addition, no hospital may be required to participate in an abortion.  The refusal of a hospital or individual to participate may not be a basis for liability.

Does the law require the refusing individual or entity to notify the persons affected?  No.

Are there circumstances under which a refusal clause may not be exercised?  No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services?  No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause?  No.

Fla. Stat. Ann. § 390.0111(8) (Enacted 1979).

CONTRACEPTION REFUSAL CLAUSE

Florida allows certain individuals or entities to refuse to provide contraceptive procedures, supplies, or information.

To whom does the refusal clause apply?  Individuals and physicians.

What does the refusal clause allow?  A physician or other person may refuse to furnish any contraceptive or family planning service, supplies, or information for religious reasons, and the physician or other person may not be held liable for such refusal.

Does the law require the refusing entity to notify the persons affected?  No.

Are there circumstances under which a refusal clause may not be exercised?  No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for contraceptive procedures, supplies, or information?  No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause?  No.

Fla. Stat. Ann. § 381.0051 (Enacted 1972; Last Amended 2000).

Restrictions on Low-Income Women's Access to Abortion

Florida prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, or the pregnancy is the result of rape or incest.  Agency for Health Care Administration, Physician Services Coverage and Limitations Handbook, 2-71 (Jan. 2007), at http://portal.flmmis.com/FLPublic/Portals/0/StaticContent/Public/HANDBOOKS/CL_07_070101_MD_Services_ver1.2.pdf;  Agency for Health Care Administration, Medicaid Provider Reimbursement Handbook, UB-04, 2-46 to 2-48 (May 2007) at http://portal.flmmis.com/FLPublic/Portals/0/StaticContent/Public/HANDBOOKS/RH_08_080701_UB-04_ver1.2.pdf;  Hospital Services Coverage and Limitations Handbook, 2-3 (June 2005) at http://portal.flmmis.com/FLPublic/Portals/0/StaticContent/Public/HANDBOOKS/HospitalHB.pdf;  Medical Provider Reimbursement Handbook-CMS-1500, 2-47 to 2-49 (Feb. 2006) at http://portal.flmmis.com/FLPublic/Portals/0/StaticContent/Public/HANDBOOKS/RH_08_080701_CMS-1500_ver1.4.pdf;  Fla. Admin. Code Ann. r. 59G-4.150, -4.160, -4.230.

A court denied a request for an order stating that under the Florida Constitution, a woman eligible for state medical assistance may obtain public funds to pay for a medically necessary abortion to the same extent that funding is available for other medically necessary services generally.  Renee B. v. Florida Agency for Health Care Admin., 790 So. 2d 1036 (Fla. 2001).

Although a new lawsuit against the state's policy was filed relating to unresolved issues, a judge has dismissed the case, ruling that the policy must first be reviewed by an administrative law judge for consistency with the statute.  A Choice for Women, Inc. v. Florida Agency for Health Care Admin., No. 01-CA-2439 (Fla. Cir. Ct. Apr. 4, 2002).  A case was filed before an administrative judge who later dismissed it, ruling that the regulations and provider manual do not conflict with the statute.  A Choice for Women, Inc. v. Florida Agency for Health Care Admin., No. 02-3079 RX (Fla. Div. Admin. Hearings Oct. 17, 2002) (dismissal).  A court affirmed the decision.  A Choice for Women, Inc. v. Florida Agency for Health Care Admin., No. 3D02-3039 (Fla. 3d Dist. Ct. App. Sept. 3, 2003).

Restrictions on Young Women's Access to Abortion

Florida law restricts young women's access to abortion.

Is the law enforceable?  Yes. 

Who is considered a minor?  A young woman under the age of 18.

What is required - parental consent or parental notice?  Notice.

Who must be notified?  One parent.

Are there other trusted adults who may be notified instead?  No.

What is the process for providing notification?  A young woman may not obtain an abortion until at least 48 hours after actual notice is given in person or by telephone by the attending or referring physician to one parent.  If actual notice is not possible after a reasonable effort has been made, 72 hours constructive notice by certified mail, return receipt requested, must be given.  After 72 hours have passed, delivery is deemed to have occurred.  Parental notice is not required if it is waived in writing by the person entitled to notice.  The young woman may waive notice if she is or has been married, if she has been emancipated by a court, or if she already has a minor dependent child.

May the parental mandate be waived if a young woman is a victim of rape or incest?  No.  However, the young woman may try to obtain a court order allowing the abortion if she is a victim of sexual abuse.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.  However, the young woman may try to obtain a court order allowing the abortion if she is a victim of child abuse.

May the parental mandate be waived if a young woman's health is threatened?  Yes, but only if a medical emergency exists.  A medical emergency is defined as a medical condition of the young woman that necessitates an immediate abortion to preserve her life or for which a delay will create "serious risk of substantial and irreversible impairment of a major bodily function." 

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating:  (1) by clear and convincing evidence that:  the minor is sufficiently mature to decide whether to terminate her pregnancy; (2) by a preponderance of the evidence that there is evidence of child abuse or sexual abuse by one or both parents; or (3) by the preponderance of the evidence that parental notice is not in her best interests.

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  Yes.  Pro-choice advocacy groups challenged the parental notification law, which took effect on July 1, 2005, as an infringement upon the constitutional rights of both providers of abortion care and minors who seek abortions, but, in February of 2006, a federal judge upheld the law as constitutional.  WomanCare of Orlando Inc v. Agwunobi, 448 F. Supp. 2d 1309 (N.D. Fla. 2006).

In 2003, a court held that Florida's previous parental notification law violated minors' state constitutional privacy rights, and deemed the law unenforceable.  Fla. Stat. Ann. §390.01115 (Enacted 1999), §390.01116 (Enacted 1999), §1.01(13) (Original Statute Enacted 1892; Relevant Provision Enacted 1973); N. Fla. Women's Health & Counseling Servs. v. State, 866 So. 2d 612 (Fla. 2003).  In response to the court's decision in North Florida Women's Health and Counseling Services v. State, state legislators passed a joint resolution to amend the state constitution.  The resolution, which then became a ballot initiative approved by a majority of Florida voters in 2004, establishes that the legislature may require parental notification without violating a young woman's state constitutional right of privacy, as long as the parental notification law provides for certain exceptions and a judicial bypass.  The Florida legislature established such a parental notification law in 2005, and it was signed into law by Governor Jeb Bush in May 2005.  This act took effect on July 1, 2005.  Prior to upholding the law as constitutional, the federal judge in WomanCare of Orlando Inc v. Agwunobi had rejected a request from pro-choice advocacy groups for a preliminary injunction to stop the law from going into effect.  WomanCare of Orlando Inc v. Agwunobi, 448 F. Supp. 2d 1293 (N.D. Fla. 2005) (temporary injunction denied).

Fla. Stat. Ann. § 390.01114 (Enacted 2005).

Targeted Regulation of Abortion Providers (TRAP)

Florida imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including: 

Restrictions on Where Abortions May Be Performed

Florida places medically unnecessary restrictions on where abortions may be performed.

Any facility in which abortions are performed must obtain an "abortion clinic" license from the state; a yearly license costs $250. Fla. Stat. Ann. §§ 390.014(1), .014(3) (Enacted 1978; Last Amended 1991); Fla. Admin. Code Ann. r. 59A-9.020(1), .020(2). Hospitals and a physician's office are exempted from the licensure requirement, provided that the office is not used primarily for the performance of abortions. Fla. Stat. Ann. § 390.011(2) (Enacted 1979; Last Amended 1990).

The state requires clinics to maintain personal medical records of patients for a minimum of five years and specifies that they must be "systematically organized to facilitate storage and retrieval," but does not specify who may have access to the required records or what privacy protections the state affords patients whose records are inspected. Fla. Admin. Code Ann. r. 59A-9.031.

State officials have the right to enter any licensed facility, or any facility applying for a license, "at any reasonable time in order to determine the state of compliance" with regulations. Fla. Admin. Code Ann. r. 59A-9.021(4). No specific patient privacy-protection measures are outlined; the administrative rule simply says that the inspections must be made with the "least possible disruption to clinic activities and in a manner considerate of the privacy and confidentiality of any patient who is present therein." Fla. Admin. Code Ann. r. 59A-9.021(4).

In 2005, Florida adopted extensive additional new regulations that apply to providers of abortions after the first trimester. Fla. Stat. Ann. § 390.012 (Enacted 2005; Last Amended 2007).

Restrictions on Who May Perform Abortions

Florida prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed by the state in medicine or osteopathy, or practicing medicine or osteopathy and employed by the U.S., may perform an abortion.  Fla. Stat. Ann. § 390.0111(2) (Enacted 1979; Last Amended 1999), Fla. Stat. Ann. § 390.011(7) (Enacted 1978; Last Renumbered 1998).

A court held that a previous version of this law was constitutional.  Wright v. State, 351 So. 2d 708 (Fla. 1977).