Was abortion illegal in Florida before Roe v. Wade? Are there restrictions now?
6/24/2022 UPDATE: The U.S. Supreme Court has overturned Roe v. Wade, the 1973 landmark decision that made abortion a constitutional right in the U.S. Under the new ruling, each state will have more power to decide its own abortion policy, including outlawing the procedure.
In Florida, a new law banning most abortions in the state after 15 weeks of pregnancy is set to go in effect on July 1. The law was passed by the Legislature in March.
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For decades, abortion has legally been seen as a right in Florida, protected by the privacy clause in the state’s constitution.
But you may be wondering: What will happen to the future of abortion rights in Florida if the U.S. Supreme Court ends Roe v. Wade like what a draft opinion suggests?
Roe vs. Wade legalized abortion in the United States and prevents states from banning the procedure before the point of “fetal viability,” which is when a baby can survive outside the womb. When Roe was decided, fetal viability was around 28 weeks — today it’s considered to be about 23 or 24 weeks, according to the New York Times.
READ MORE: The U.S. Supreme Court has overturned Roe v. Wade. What does it mean for Florida?
The 1973 ruling also created “the framework to govern abortion regulation based on the trimesters of pregnancy,” according to the Times. If Roe v. Wade ends, individual state would be able to create their own abortion policies, including a ban.
On July 1, a new Florida law that bans abortions after 15 weeks will go into effect. It’s the strictest prohibition in Florida during the Roe v. Wade era, as the Miami Herald has previously reported. It’s based on a similar 2018 Mississippi law, which is what the U.S. Supreme Court justices may officially rule on in late June or early July.
While it’s too soon to say what the future of abortions in Florida will look like, we took a dive into the Miami Herald archives to see some of the abortion laws Florida’s Legislature has passed through the years.
Florida’s abortion law before Roe v. Wade
In February 1972, a year before Roe v. Wade became the law of the land, Florida’s Supreme Court declared the state’s 104-year-old abortion law unconstitutional, saying, “We emphasize that the emotional and explosive question on whether an abortion should be prohibited or permitted is a matter entirely within the discretion of the legislative branch of government, subject only to constitutional limitations.”
At the time, Florida law prohibited abortions except if it was necessary to preserve the life of the mother. Justices determined the law was “vague, indefinite and uncertain,” according to Miami Herald archives. The justices also struck down a statute that criminalized abortion as manslaughter, according to Herald articles published in 1972.
The court gave lawmakers 60 days to make a new law. If they didn’t, Florida would revert to the rules of English common law, which would permit abortion for any reason, including the mother’s choice, in the first 16 weeks of pregnancy.
Lawmakers met the deadline, and in April 1972, the Legislature passed a new law that would prohibit abortion with exceptions for women who met one of the following criteria:
▪ A doctor determines the pregnancy would “substantially impair” the woman’s life or health.
▪ A woman was a victim of rape or incest, or is carrying a child that is likely to have a “serious physical or mental defect.”
The woman would also need to get permission from a doctor, and if married, from her husband before having an abortion. If single and under 18, she would need the written consent of a parent or legal guardian.
The procedure would have to be performed in a licensed or approved hospital (the bill also noted that not every hospital would do abortions and that doctors and hospitals would not be required to perform the procedure).
The bill was a compromise between liberals who wanted so-called “abortion-on-demand” and conservatives who wanted to add a requirement that two or three doctors would need to determine that “grave and serious risks” existed to the mother’s life or physical/mental health before a woman could have an abortion.
When Roe v. Wade became law, what happened to Florida’s abortion law?
After the 1973 Roe vs Wade ruling, questions arose on whether Florida’s abortion law was now unconstitutional. After reviewing the Supreme Court’s 100-plus page ruling, Florida Attorney General Robert Shevin determined that only some of Florida’s restrictions were struck down.
Now, let’s fast-forward to October 1989, when Florida’s Supreme Court struck down a law requiring parental consent for abortion.
The ruling came from a case involving a 15-year-old Lake County girl, known in court records by the initials T.W., who asked a circuit judge in early May for permission to get an abortion without her parents’ consent. A recently passed law at the time required minors who wanted an abortion to get parental consent. The alternative would be to get permission from a judge, who would have to determine that the girl was mature enough to make her own decision or that she had legitimate fear of physical or emotional abuse if she sought her parents’ consent.
The judge denied the teen’s request, saying the consent law was unconstitutionally vague and didn’t let judges hold proper hearings, according to a Miami Herald article. Within two weeks, her case had gone to the U.S. Supreme Court and back to the state’s justices on a variety of emergency appeals. Eventually, she got an abortion in late May, after both state and federal Supreme Courts dissolved stays.
Since this 1989 ruling by state justices, abortion has been viewed as a fundamental legal right under Florida’s Constitution although conservatives have long argued that the privacy clause shouldn’t apply to abortion, as the Miami Herald has previously reported.
What are Florida’s recent abortion laws?
The Florida Legislature tends to take up new abortion restrictions nearly every legislative session. “In 2003, courts struck down a law requiring parental notification, but voters in 2004 approved a constitutional amendment to re-create a similar law requiring parents to be notified when a minor gets an abortion,” according to a 2020 Herald article.
Yes, there’s a lot of back and forth when it comes to laws in Florida. Here’s a look at some of the recent abortion bills the Florida Legislature has made into law.
▪ April 2022 — In April, Gov. Ron DeSantis signed a bill banning most abortions in the state after 15 weeks of pregnancy. The new law, which takes effect July 1, was passed by the Legislature in March. It will replace the state’s previous law that allows abortions until the third trimester — about 24 weeks of pregnancy. Florida’s new law is based on Mississippi’s 15-week abortion ban.
▪ Also in April: Leon County Circuit Judge Angela Dempsey approved a 24-hour waiting period for abortions in Florida, ending a lengthy legal challenge that began in 2015, when then Gov. and current U.S. Sen. Rick Scott signed the bill into law. Under the law, women are required to wait 24 hours after an initial doctor visit before having an abortion.
▪ 2021 — A bill that would prohibit doctors from performing abortions because a disability was detected in the fetus passed in the House in April but died in the Senate.
▪ June 2020 — A bill requiring parental consent before minors can have an abortion was passed into law. Florida law at the time already required notifying parents if a minor planned to get an abortion. Under the new law, parental notification and consent would be required for minors. To get around the requirements, a minor would need to obtain a judicial waiver.
Lawmakers had initially attempted to pass the parental consent bill during the 2019 legislative session, but while it passed the House, it stalled in Senate committees.
▪ 2019 — Members of Florida’s Legislature showed interest in passing a “heartbeat bill,” which would ban abortions after six weeks of pregnancy, similar to a Texas bill. By the time the bill hit the floor, it had developed into the 15-week abortion ban, which will go into effect July 1, 2022.
This story was originally published May 9, 2022 at 6:39 AM.
