Florida’s Six-Week Abortion Ban is Found Constitutional, But Allows Expansion Question on Upcoming Ballot

May 2, 2024 Criminal Defense, News & Announcements

After months of debate and speculation, the Florida Supreme Court has released two new decisions regarding the access to abortion rights. While one of the decisions approved the controversial six-week abortion ban, justices have also approved of the measure to let Florida voters decide whether abortion access should be expanded within the state.

This page will provide information pertaining to the Florida Supreme Court’s most recent decisions on abortions, along with the details and penalties for seeking an abortion past the six-week mark.

Florida Supreme Court’s Decision on the Abortion Ban

In a 6-1 decision, the Florida Supreme Court first found that the 15-week abortion ban that was enacted in 2022 was constitutional. This means as of now, through May 1st, women in Florida—regardless of age—cannot seek to obtain an abortion past 15 weeks. The only exception for the 15-week ban is if there was a “fatal fetal abnormality” or if an abortion would be necessary to save the mother’s life.

Despite Florida passing this measure two years ago, it couldn’t go into effect while a court challenge was pending. Then in 2023, in response to the lawsuit set forth by Planned Parenthood and other abortion providers, the Florida Legislature proposed another abortion law with even stricter time frames—banning an abortion past the six-week mark of pregnancy.

The six-week ban was said to go into effect 30 days from the earlier ban’s approval, which has now happened. That means beginning May 1, 2024, the state of Florida will enact a ban on abortions outside of the six-week window.  

In the majority’s opinion, Justice Jamie R. Grosshans wrote, “Based on our analysis finding no clear right to abortion embodied within the Privacy Clause, Planned Parenthood cannot overcome the presumption of constitutionality and is unable to demonstrate beyond a reasonable doubt that the 15-week ban is unconstitutional.”

Decision to Allow Ballot Measure in Favor of Abortion Rights

With the ruling on the six-week ban, Florida joins several other states as holding some of the most restrictive abortion access in the nation. However, it was not the only ruling made.

The Florida Supreme Court also approved a measure for a proposed state constitutional amendment regarding abortion access. Being referred to as Amendment 4, the potential amendment could undo both abortion bans if it receives enough votes this fall. According to CNN, Amendment 4 needs 60% of voters in favor for the amendment to be approved.

During the oral arguments on February 7, 2024, those arguing in favor of Amendment 4’s placement on the ballot included “certain Former Florida Republican Elected Officials, the American College of Obstetricians and Gynecologists, certain Florida Doctors, and certain Law Professors and Instructors.”

The ballot title for the proposed amendment is “Amendment to Limit Government Interference with Abortion,” with the summary stating:

“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. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

Although the language of the proposed measure was challenged by Attorney General Ashley Moody for its potential to be considered “vague and confusing,” the justices stated in their opinion: “It cannot be said that the ballot summary will mislead voters regarding the actual text of the proposed amendment.”

The following is a statement by Lauren Brenzel, the campaign director for Yes on 4:

“This is our chance to engage in a direct democracy to stop these unpopular and harmful policies…We are thrilled Floridians will have the opportunity to reclaim their bodily autonomy and freedom from government interference by voting for Amendment 4 this November. Today’s ruling also underscores the crucial role of Florida’s ballot initiate process, which provides voters an important opportunity to take the reins when politicians aren’t representing our interests.”

Are there Criminal Penalties Under the 6-Week Abortion Ban?

Yes, there are criminal penalties that can result from a violation under the newly imposed six-week abortion ban.

SB 300 titled, “Pregnancy and Parenting Support” or also referred to as the “Heartbeat Protection Act,” is set to provide pregnancy support services. Additionally, the bill also prohibits physicians from knowingly performing or inducing an abortion, “after the gestational age of the fetus is determined to be more than 6 weeks, rather than 15 weeks, with exceptions.”

Only an “in-person performance” of an abortion can take place by a licensed physician can take place at or past the six-week mark if one of the following conditions is met:

  1. Two physicians certify in writing that, in reasonable medical judgement, 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;
  2. 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;
  3. 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; or
  4. 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 an abortion, she must provide a copy of:
    1. A restraining order;
    2. A police report;
    3. A medical record; or
    4. Other court documentation providing evidence that the woman is obtaining an abortion because she is a victim of rape, incest, or human trafficking.

If the woman seeking an abortion is 18 or older, the in-person physician must report any known or suspected human trafficking to a local law enforcement agency. If the woman seeking an abortion is under 18 and considered a minor, the physician must report the incident of rape, incest, or human trafficking to the central abuse hotline.

The approved bill amends the text under Florida Statute Section 390.0111, and provides the following penalties:

Third-degree felony: “Any person who willfully performs, or actively participates in, a termination of pregnancy in violation of the requirements of this section.”

Second-degree felony: “Any person who performs, or actively participates in, a termination of pregnancy in violation of this section, which results in the death of a woman.”

A third-degree felony is punishable with up to five (5) years in prison and up to a $5,000 fine.

A second-degree felony is punishable with up to ten (10) years in prison and up to a $10,000 fine.

Given the language of the bill’s text, it remains unclear at this point who all will be affected by the criminal penalties asserted in the six-week abortion ban. Another bill, SB 34, was proposed to specifically add the amended line, “This paragraph does not apply to the pregnant women who terminates the pregnancy” following the penalties section of the law. However, the bill died in Health Policy.

Law professors across the U.S. are speculating Florida’s new abortion ban and its penalties, claiming that they could have specified if it were only physicians who can be held criminally liable for an abortion past six weeks.

University of California law professor and abortion law expert Mary Ziegler claimed that there’s no statute or case law “or anything else [that] gives you a clear answer” regarding whether SB 300’s penalties will apply to the women who seek abortions in addition to those that provide them outside of the new legal window.

“The law doesn’t rule out women being prosecuted, even if it doesn’t explicitly say they will or won’t be,” Ziegler said.

With the six-week abortion law set to go into effect as of May 1, we will continue to provide any relative updates on the new abortion law or its penalties.

Contact the Defense Team at Pumphrey Law

If you or someone you love is arrested for a suspected crime in Leon County or the surrounding regions of North Florida, consider hiring a defense lawyer to represent your case. Depending on the criminal offense you’ve been accused of and the surrounding details of the incident, a conviction could lead you to paying expensive fines, face probation, imprisonment, or all the above.

The defense team with Pumphrey Law Firm has decades of combined experience representing those in need of criminal defense. When you call our Tallahassee office at (850) 681-7777 we can provide you with a free consultation to discuss your case details and form a plan for defense.

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