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What Is The Future Of Abortion Restrictions In Florida?

Abortion opponents see the confirmation of Brett Kavanaugh to the U.S. Supreme Court as an opportunity to push for further abortion restrictions. Abortion supporters are preparing for a fight.
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

With six weeks until the start of the Legislative session, a Republican state representative from Pensacola introduced a bill last week that would ban abortions if a doctor detects a fetal heartbeat. That usually happens about six weeks into a pregnancy, often before a woman even knows she is pregnant.

Reproductive rights activists have denounced the law, calling it the latest in a series of assaults on a woman’s right to choose. Others point out its unconstitutionality.

Abortion is currently protected by both the state and federal constitutions until the point of viability, which is around 24 weeks.

“These heartbeat bills are not even a little bit constitutional,” Caroline Corbin, a Constitutional law professor at the University of Miami School of Law, said Friday on The Florida Roundup. “In fact they violate both the U.S. constitution and the Florida constitution.”

The fetal heartbeat bill, HB 235, was filed by Rep. Mike Hill, a self-described evangelical Christian. It would require a doctor to tell a woman wanting an abortion if the fetus has a heartbeat and show it to her or have her listen. The woman could decline, but would have to do so in writing. If a doctor performed the abortion, it would be a third-degree felony.

The legislation also removes the word fetus from the legal definition of abortion and replaces it with “unborn human baby.”

The effort comes as the Florida Supreme Court is undergoing what’s being called a conservative makeover. Historically, the court has blocked certain measures passed by the GOP-dominated legislature. In 2017, the court -- at the time liberal-leaning -- blocked a 2015 state law requiring women to wait 24 hours and have two doctor visits before getting an abortion.

Governor Ron DeSantis has already appointed two new Republican-appointed members. He has one more Supreme Court pick to make.

As a candidate, DeSantis said he would sign a fetal heartbeat bill banning abortions.

Florida’s bill mirrors those filed in a number of other states, none of which have become law. A similar law in Iowa is currently making its way through the courts. In December, Ohio’s state legislature failed to override Gov. John Kasich's veto of a fetal heartbeat bill.

States have imposed a number of other types of restrictions and limitations on abortion, including waiting periods, state-mandated counseling, parental involvement and physician and hospital requirements. Between 2010 and 2016, states enacted 338 new abortion restrictions, according to the Guttmacher Institute.

“Many states with conservative majorities in their statehouses and conservative governors are moving these sorts of abortion restrictions,” Alice Ollstein, Health Care Reporter on Capitol Hill for POLITICO, said Friday on The Florida Roundup. “Florida is certainly not an outlier here.”

Currently under Florida law, health plans under the Affordable Care Act can only cover an abortion if a woman's life is in danger. Florida also requires the parent of a minor to be notified before an abortion. 

Orbin said Florida’s fetal heartbeat bill will almost certainly be “struck down pretty quickly.”

Florida’s constitution has an explicit provision guaranteeing the right to privacy.

“They’re going to have a hard time arguing that the government forcing people to carry an unwanted pregnancy is not government intrusion into a person’s private life,” she said.

Some lawmakers hope that legal challenges to abortion bills set the stage for a challenge to Roe v. Wade, the 1973 U.S. Supreme Court decision that made abortion a constitutional right. The newest Supreme Court Justice Brett Kavanaugh shifted the court's majority firmly to the right.

“We just don’t know how willing that majority is to revisit precedent like Roe v. Wade or overturn it,” Ollstein said, “or make a lot of abortion restrictions that are possible without overturning Roe v. Wade.”

If the Supreme Court were to overturn Roe v. Wade, power would return to the states.

“Abortion is already inaccessible in many parts of the country for women of a certain socioeconomic status,” Ollstein said. “A woman might have to travel a great distance and have a mandatory waiting period and pay a certain amount because she can’t use medicaid coverage.”

Nationwide about 90% of women live in counties that don’t have an abortion clinic.

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Jessica Weiss