By Matt Lammens Photo Credit: AP Photo / Gary McCullough
On January 8, 2024, Republican House Reps. David Borrero of District 111 (part of Miami-Dade County) and Mike Beltran of District 70 (containing parts of Hillsborough and Manatee counties) filed House Bill 1519 (HB 1519), which aims at prohibiting “a person or entity from purposely performing or attempting to perform abortion” with the only exception being medical emergencies. Since its initial filing, the bill moved through three committees and is now in the Healthcare Regulation Subcommittee, where it has been since January 13, 2024. Such a long period of stagnation could indicate a partial or complete loss of traction, but it has not officially died.
The Argument Behind the Bill
In justifying its mission to further minimize abortion access, the bill begins by arguing that the Fifth and Fourteenth Amendments to the U.S. Constitution grant “the right to life for all natural persons,” referring to the repeated language in both amendments. It cites the fact that no U.S. citizen is to be “deprived of life, liberty, or property, without due process of law.” The bill also states “there is no distinction between natural unborn persons and natural born persons,” and “scientific advancements in human embryology have shown a person exists from the moment of fertilization.”
The next portion of the bill equates the protection of abortion to the decision of Dred Scott v. Sandford (1856), in which the Supreme Court ruled that enslaved persons were not to be seen as citizens of the country. It refers to abortion and slavery in a similar context, calling both a “grave injustice” and a “crime against humanity.” Specifically, it claims that just as African Americans were denied personhood through Dred Scott, any court rulings upholding the right to have an abortion similarly deny personhood to fetuses. The bill then credits the U.S. Supreme Court with supporting injustice again by inventing the right to abortion through its ruling in Roe v. Wade (1973) which established a right to personal privacy. With both Dred Scott and Roe now overturned by the U.S. Supreme Court, the bill’s text has a theme of correcting past “injustices” by labeling now as the time to virtually eradicate abortion in the state of Florida by extending legal rights to “unborn citizens.”
What the Bill Would Do as Law
The bill would make several changes to Florida’s Public Health Statute known as Title XXIX Chapter 390, which regulates the termination of pregnancies. The changes made to Section 390.011 of the statute would redefine abortion so it would be considered “the act of using, prescribing, administering, procuring, or selling any instrument, medicine, drug, or other substance, or any surgical or nonsurgical means” which can “terminate” a pregnancy. Throughout the bill, the term “abortifacient” is utilized to refer to the various means used to facilitate an abortion. It also defines a person as “an individual, including an unborn child beginning at the moment of fertilization, entitled to rights recognized by the State Constitution and the United States Constitution.”
The next proposed change is to Section 390.0111. The statute currently allows state agencies or local governmental entities to fund clinics that either provide abortions on “fetuses that are conceived through rape or incest” or abortions on women in cases where it is “medically necessary to preserve the life of the pregnant woman.” The new bill would only allow funding of clinics that do the latter, demonstrating a change regarding exceptions for those who are impregnated via rape or incest.
Additionally, the bill would change Section 390.01114, which contains the Parental Notice of Consent for Abortion Act. Under the bill’s revisions, abortions would only be provided to a minor in order “to save the life of the pregnant minor in a medical emergency.” The bill also addresses the parental consent needed for a minor to get an abortion. Currently, law allows parental consent to be waived by the court if there is “clear and convincing evidence” the minor is “sufficiently mature to decide whether to terminate her pregnancy.” If HB 1519 becomes law, however, that language would be entirely removed from the existing statute and would make it so the only time parental consent could be waived is if the termination of the pregnancy is “required to save the life of the minor in a medical emergency.” The minor’s maturity level would not play any role in allowing the bypass of parental consent.
The last major change to Florida Statute Chapter 390 proposed by HB 1519 would be the creation of an entirely new section of the statute, Section 390.031, which reiterates the previously discussed changes, such as allowing abortions only in the case of a “medical emergency.” It then lists three actions to be viewed as “attempts to perform an abortion:” a person who mails an abortifacient to someone or someplace in the state, a person who distributes an abortifacient “in this state without a valid prescription,” or when a person “intentionally places an abortifacient into the stream of commerce” knowing it could go to someone within the state. The punishment for performing or attempting to perform an abortion is described as “a third degree felony…with a mandatory term of imprisonment to not exceed 10 years or with a fine not to exceed $100,000, or both.” It is explicitly stated in the proposed provision that the law would “not authorize a woman to be charged with or convicted of a criminal offense in the death of her own unborn child.” On the topic of legal actions, a pregnant woman who is given an abortifacient can “bring a civil action against another person or entity,” and the court may award award “injunctive relief that requires the defendant to comply with this section” and $10,000 in damages for each abortion performed or attempted by a person or entity.
Pending Cases Related to Abortion
As the future of HB 1519 remains to be determined, other notable developments could have an impact on abortion access in the state. On April 14, 2022, Florida Governor Ron Desantis signed House Bill 5 (HB 5) into law which prevents access to abortion after 15 weeks of pregnancy. Soon after, Planned Parenthood of Southwest and Central Florida et al. filed a lawsuit challenging the constitutionality of the bill, arguing it violates Section 23 of the Florida Constitution which grants the right to privacy. Although Leon County Circuit Judge John C. Cooper ruled that the changes made to Florida Public Health Statute Title XXIX Chapter 390 are unconstitutional, the State of Florida appealed the decision to the Florida Supreme Court which heard the arguments on September 8, 2023, and is yet to announce a verdict.
Meanwhile, on April 14, 2023, Governor Ron DeSantis signed Senate Bill 300 into law which would ban abortions at 6 weeks, but the bill becoming law depends on the pending decision of Planned Parenthood of Southwest and Central Florida, et al., v. State of Florida, et al. If the Florida Supreme Court rules the 15-week ban as constitutional, the 6-week ban from 2023 will replace it and become the new law. Five of the seven justices on the Florida Supreme Court have been appointed by Governor DeSantis (which is more than the four needed to agree on a ruling), which seems to signal a greater likelihood that the court will support the ban, although the end result is uncertain.
The second development related to abortion access in Florida regards a proposed amendment to the state constitution stating “no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health.” The ballot initiative was directed by Floridians Protecting Freedom, a campaign of many organizations. The campaign spent several months trying to reach the 891,523 signatures required for it to appear on the November 8, 2024 ballot. Despite the state’s Division of Elections confirming the amendment reached the required number of signatures on January 25, 2024, the state Supreme Court must determine the ballot language as clear and unambiguous for it to actually appear on the ballot. Florida Attorney General Ashley Moody challenged its wording and implications. The Florida Supreme Court heard oral arguments on February 7, 2024, with Nathan Forrester representing the Attorney General’s office and Courtney Brewer representing the amendment’s sponsors. Addressing Forrester near the end of the arguments, Chief Justice Carlos G. Muñiz explained that he thought the wording of the proposed constitutional amendment was not deceptive. The court is expected to make an official ruling by April 1, 2024.
Even if deemed suitable for the ballot, the amendment would need approval from 60 percent of the state’s voters to pass. The future of the amendment could impact the outcome of Planned Parenthood of Southwest and Central Florida, et al., v. State of Florida, et al and HB 1519. With many different decisions at play within the legislature and in the Florida Supreme Court, the future of abortion access in the state is still uncertain and there are several potential avenues for its fate.