A Look at Dobbs, Florida Law, and the Uncertain Future

By: Roia Barrios

Abortion is legal in Florida. Historically, Florida courts have protected a woman’s right to choose through application of the Florida Constitution, which includes an express right to privacy. In 1989, the Florida Supreme Court specifically held that this right to privacy protected a woman’s decision of whether or not to continue her pregnancy. As a result, Florida became somewhat of an unlikely haven in the South for women to access safe and legal abortions. For many years, Florida has had the third highest abortion rate the in the country (behind New York and Illinois).

However, Florida recently passed legislation that became law on July 1, 2022. The new law, codified in Chapter 390, Florida Statutes, permits an abortion until the 15th week of gestation.  After 15 weeks, an abortion is only permissible (a) to save the pregnant woman’s life or to avoid her serious injury or (b) if the fetus has a fatal fetal abnormality and has not achieved viability.  Outside of an imminent medical emergency, two doctors must certify these conditions, in writing.

The statute defines a “fatal fetal abnormality” as “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.” One would think that a fetus with a fatal abnormality could not achieve viability. The definition itself indicates that the fetus will die at birth or imminently thereafter. However, if that were the case, then the legislature would not have required both a fatal fetal abnormality and a lack of viability. It is a well-established cannon of statutory construction that all words of a statute must be given meaning.

The statue defines “viability” as “the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.”  Arguably, viability is measured by a “stage” of development, as opposed to the actual development of the fetus at issue. As such, a fetus with a fatal abnormality that will not survive birth may nonetheless be viable under the law. If that is the case, the date on which an abnormality is discovered becomes extremely important to preserve all available options for a pregnant woman.  In addition, different physicians, hospitals, and clinics may interpret these terms differently or vary in their application of the statute.

Planned Parenthood has already challenged the new law and, thus far, has obtained favorable results. On July 5, 2022, the Circuit Court in Leon County entered an emergency temporary injunction blocking the enforcement of the law. The court found that Planned Parenthood was substantially likely to succeed in its constitutional challenge of the law and, thus, an immediate injunction blocking enforcement of the law was proper. The court rooted its holding in the right to privacy, finding the right in Florida’s Constitution to be “much broader in scope” than any privacy right that may implicitly exist within the United States Constitution. The court’s expansive order chronicled numerous reasons why women may seek abortions after 15 weeks. The court also discussed the timing of determination of genetic abnormalities, such as through amniocentesis, may not be compatible with a 15-week ban. Overall, the court’s decision is thoughtful and well-supported.

The state of Florida appealed the trial court’s order, which, under the rules of appellate procedure, automatically stays the effect of the order while the appeal is pending. It remains to be seen whether the appellate court, and potentially, the Florida Supreme Court, will agree with the reasoned opinion of the circuit court. However, it appears that the worst-case scenario for reproductive rights is the 15-week ban as it is currently written.

Should the state ultimately win on appeal, it seems unlikely that the legislature would attempt to pass any stricter measures. Several states, like Texas, passed complete bans immediately following the Dobbs decision. Florida opted instead for a less-drastic 15-week ban. And, after having to defend that law and overcome a loss at the trial court level, the legislature would likely not push its luck. Moreover, the majority of Florida voters favor keeping abortion legal.

If Planned Parenthood prevails and longstanding Florida Supreme Court precedent is upheld, then Florida would likely revert to the 24-week limit that was in effect before the passage of the new law.

Since Dobbs, some Florida clinics have tripled in volume as neighboring states have enacted further restrictions on access to abortions. However, concerns may eventually arise for women who travel for an abortion, as states jockey to enforce their political agendas across state lines. To date, there have not been any reports of any other state penalizing a woman for obtaining an abortion in Florida.

Florida’s new law on pregnancy termination does not extend to issues relating to personhood. Florida also does not have any pending proposed personhood legislation. As it stands, embryos are not considered persons and their disposition remains unaffected.

These are uncertain times. It will likely be several months, if not more, before the state of the law on abortion rights is solidified in Florida. The Leon County circuit court has set the path in the right direction. While we wait for the courts, we can continue to impress the importance of these rights on our political leaders.