Florida's phony "exceptions"

Governor Ron DeSantis (R) signs Florida’s 15-week abortion ban into law on April 14, 2022 (Photo by Paul Hennessy via Getty Images)

Last week, Florida Governor Ron DeSantis (R) signed a near-total abortion ban into law. The law, the “Heartbeat Protection Act,” prohibits “physicians from knowingly performing or inducing a termination of pregnancy” after six weeks — before many even know that they are pregnant. 

Violators of the law, both those who perform the procedure or “actively participat[e]” in an abortion, could be charged with a third-degree felony. The new law will only take effect “if the state’s current 15-week abortion ban is upheld” in the Florida Supreme Court, a decision that seems likely as the court is controlled by conservative jurists. 

According to the AP, the law will further limit already minimal access to abortion throughout the South, as Alabama, Louisiana, and Mississippi have total abortion bans in place and Georgia prohibits abortions after a heartbeat is detected, usually around six weeks. 

Total abortion bans are widely unpopular across the United States. Last October, the American Values Survey by the Public Religion Research Institute found that only eight percent of Americans thought that “abortion should be illegal in all cases.” Furthermore, polling by the Associated Press-NORC Center for Public Affairs Research found that “[o]verwhelming majorities also think their state should generally allow abortion in specific cases, including if the health of the pregnant person is endangered or if the pregnancy is the result of rape or incest.” 

Florida legislators attempted to make the new abortion restrictions more politically palatable by including certain “exceptions,” including cases of rape, incest, risk to the life of the mother, and fatal fetal abnormalities. But these exceptions are being written by the same elected officials pushing for abortion bans, and therefore include provisions dramatically limiting their utility.

For example, Republican legislators have advertised the law as including an exception for rape and incest. In reality, the law requires that the victim provide documentation of a “restraining order, police report, medical record, or other court order or documentation providing evidence that she is obtaining the termination of pregnancy because she is a victim of rape, incest, or human trafficking.” The exception also only applies if the “gestational age of the fetus is not more than 15 weeks as determined by the physician.”

These requirements will make it difficult for victims to access abortions, as the vast majority of cases of rape and incest go unreported to the police, and obtaining a restraining order or other court order can be difficult and time-consuming. According to the Rape, Abuse & Incest National Network (RAINN), “more than 2 out of 3” sexual assaults go unreported. Many victims avoid reporting cases of rape or incest out of fear that it could lead to additional violence or safety issues. The procedure of being processed for rape can also be physically invasive and traumatizing for a victim, as well as emotionally difficult to recount the events. Florida State Representative Robin Bartleman (D) argued during the hearing for the proposed legislation that requiring victims to prove that they were raped can be “re-traumatizing.”

DeSantis, who has been relatively quiet about his support of the bill and signed the law late last Thursday night with “little fanfare,” said that the rape and incest exceptions are “sensible.” While Republican lawmakers are touting the exceptions included in the law as reasonable, the reality is that obtaining an abortion in Florida will be nearly impossible for anyone under the new law. 

Saving someone's life requires a second opinion

Florida’s ban includes a few other exceptions, including if the pregnant person’s life or health is at risk. To provide this care, however, two physicians would have to certify in writing that the abortion 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.” According to the law, “psychological conditions” are excluded from being considered in the decision. If two physicians are not around, then one doctor can certify the abortion, the law states. But this doctor will also need to confirm in writing that “another physician is not available for consultation.”

The law contains an exception for a fatal fetal abnormality, which also requires two physicians to certify the abortion in writing. The new law notes that the pregnancy cannot have “progressed to the third trimester,” effectively banning abortions for fatal fetal abnormalities after 27 weeks. 

Requiring the sign-off of two physicians, however, limits the ability to deliver urgently needed and time-sensitive care. In the event of a life-threatening emergency, searching for a second doctor or doing your due diligence to make sure that another doctor is “not available” can further endanger the pregnant person. Doctors, who undergo years of training, should be able to swiftly act to save the patient’s life without having to consult others. 

Securing two physicians is a major hurdle for the patient as well. For most people, finding one physician–let alone two–is a major undertaking. And, even if the patient manages to meet with multiple physicians, there’s no guarantee that their doctor will act. 

Florida’s previous abortion ban, for example, forced a woman to carry a baby with a lethal condition to full term because none of her doctors wanted to sign off on an abortion. Medical experts told the woman to expect her baby “to survive only 20 minutes to a couple of hours,” but “because of the new legislation, they could not terminate the pregnancy,” the Washington Post reported. 

Why it's almost impossible to get an abortion within six weeks of getting pregnant

Under the new law, people seeking an abortion have less than six weeks to do so. But experts agree that many people don’t know they’re pregnant at six weeks. Nearly two-thirds of people terminate their pregnancy after the six-week mark, reports The 19th. In fact, State Senator Erin Grall (R), a sponsor of the law, acknowledged this, saying that “very few abortions happen from zero to six weeks,” and that “there will be many tens of thousands of babies that are saved because of this law passing in Florida.”

With many people realizing that they’re pregnant after they’ve missed a period, that leaves approximately a two-week window to get an abortion. But this is a very narrow window of time to not only make a decision but also figure out the logistics of obtaining an abortion, including taking time off, arranging child care, and getting the money to pay for the procedure. 

Additionally, Florida law requires a person seeking an abortion to “have two appointments at least 24 hours apart to obtain an abortion,” – but this can take anywhere from weeks to months according to several Florida health professionals. This burden is most acute for low-income and Black Floridians. As one doctor told lawmakers, for Florida’s Black community, “this law is a near total ban.”