Florida Amendment 4 on abortion falls short of 60% threshold in the Nov. 5, election

ORLANDO, Fla. – Abortion is on the ballot in 10 states, including Florida, this November.

Florida’s amendment was born out of the state’s decision to curtail abortions, first to 15 weeks of pregnancy in 2022 and then to six weeks of pregnancy in 2023.

Before that, Florida allowed abortions up to viability.

Amendment 4 would allow abortions up to viability, but it failed to pass with 60% approval from Florida voters, according to the Associated Press.

Floridians Protecting Freedom was able to collect enough petition signatures to get Amendment 4 on the ballot at a surprising speed. It took less than a year. Signatures were verified by county supervisors of elections and certified by the Florida Division of Elections.

[RESULTS 2024: Complete Coverage | Voter Guide for the Nov. 5 election | Here are the 6 amendments that will be on the Florida ballot in November]

The Florida Supreme Court approved the amendment for the ballot in a 4-3 vote on April 1, rejecting the Florida attorney general’s argument that the amendment was vague and confusing.

This amendment had fierce adversaries, including the Florida Conference of Catholic Bishops, evangelical Christian groups and the governor’s mansion itself. The DeSantis administration has spent millions on an advertising campaign against the amendment, and over the last week has toured the state with a group of anti-abortion doctors.

DeSantis and Amendment 4 opponents claimed the amendment would nix all abortion-related laws and allow abortions up to the ninth month.

The state is also investigating for evidence of fraud in getting enough signatures to get on the ballot, even sending state police to voters’ homes asking them about signing the petition. The secretary of state’s office issued a report claiming a “large number” of forged signatures.

This is months after the agency certified the signatures to put the amendment on the ballot.

This story seeks to break down what the amendment meant and get past all the rhetoric on both sides. We will also look at the current abortion laws in Florida.

To do this, we enlisted the help of three people:

Laurie Sobel, associate director for women’s health policy at KFF, a nonpartisan health policy group.

Louis Virelli III, professor of law at Stetson University College of Law.

Dr. Sarah Prager, MD, professor of obstetrics and gynecology at the University of Washington in Seattle.

Ballot language

BALLOT SUMMARY

From the Florida Division of Elections website:

No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.

This law creates a new section in Article 1 of the Florida Constitution.

Voters will also see a Financial Impact Statement under the ballot summary. This was added by the state and formulated by the Florida Financial Estimating Conference.

The proposed amendment would result in significantly more abortions and fewer live births per year in Florida. The increase in abortions could be even greater if the amendment invalidates laws requiring parental consent before minors undergo abortions and those ensuring only licensed physicians perform abortions. There is also uncertainty about whether the amendment will require the state to subsidize abortions with public funds. Litigation to resolve those and other uncertainties will result in additional costs to the state government and state courts that will negatively impact the state budget. An increase in abortions may negatively affect the growth of state and local revenues over time. Because the fiscal impact of increased abortions on state and local revenues and costs cannot be estimated with precision, the total impact of the proposed amendment is indeterminate.

Breaking down Amendment 4

Before we get into the amendment, here is where Florida law currently stands regarding abortion.

Florida law currently allows abortions up to six weeks of gestation. The law defines gestation as beginning from the first day of the pregnant woman’s last menstrual period.

After six weeks, a physician cannot knowingly terminate a pregnancy unless:

• Two physicians certify in writing that the abortion is necessary to save the pregnant woman’s life, or avoid a serious risk of “substantial and irreversible physical impairment of a major bodily function.”
• Or, one physician can certify in writing that there is a medical need for an emergency medical procedure to terminate the pregnancy, again to save the woman’s life or avert substantial or irreversible injury, but there must be no other physician available for consultation.
• Or, the pregnancy is in the second trimester and two doctors certify in writing that the fetus has a fatal fetal abnormality.
• Or, the pregnancy is the result of rape, incest or human trafficking. In this case, the pregnancy is allowed up to 15 weeks as determined by the doctor. The patient must provide a copy of a restraining order, police report, court order or other evidence documenting her victim status.

In addition, Florida law requires a physician to perform or induce an abortion in person. A doctor cannot prescribe medication to induce abortions via telehealth and medical abortion medications cannot be mailed to a patient.

If an abortion is sought in the third trimester, the doctor needs to do all they can to preserve the life and health of the fetus, unless doing so conflicts with preserving the life and health of the pregnant woman. In that case, “the physician must consider preserving the woman’s life and health the overriding and superior concern.”

AMENDMENT 4 ALLOWS ABORTION UP TO VIABILITY. WHAT DOES VIABILITY MEAN?

“So the viability came from the Roe v. Wade framework and the cases that came after it,” said Laurie Sobel with KFF. “It’s generally thought to be at about 24 weeks, but most people will say that it’s determined by pregnancy, and each physician would make their own determination based upon measurements of the fetus at that time and everything else.”

Roe v. Wade was the 1973 U.S. Supreme Court case that decided the Constitution protected the right to have an abortion. Justice Henry Blackmun, in writing the majority opinion, researched obstetric textbooks to come up with viability as the point where a fetus can live outside the womb.

“So with medical intervention, that survivable gestational age in some facilities can be as low as potentially 22-23 weeks, and in other facilities, depending on what’s available for medical intervention, might be 28,” said Dr. Sarah Prager with the University of Washington. “So there’s a broad range, depending on what medical care is available to a fetus, and depending on the individual fetus, too.”

The American College of Obstetricians and Gynecologists says neonatal survival rates grow significantly in this period — from 23% to 27% for 23-week births, to 67% to 76% for 25-week births.

In Florida, abortion was legal until viability – at least until the Florida Supreme Court ruled the state’s abortion ban was constitutional this past year.

The state even has a definition of viability already on the books:

“Viable” or “viability” means the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.

“This amendment, in almost every way, mirrors the standard that the country’s been living under for 50 years, since Roe v Wade,” said Louis Virelli, professor of law with Stetson University Law School.

DOES THAT MEAN ABORTIONS WOULD BE ALLOWED AFTER THE SECOND TRIMESTER OF PREGNANCY?

The short answer is yes. If a mother seeks an abortion and the doctor determines the pregnancy is not viable, an abortion would be allowed.

So the question is, should a patient be forced to continue to carry a fetus that is not viable?

In a September notice to health care providers, the Florida Agency for Health Care Administration said that “abortion is permissible at any stage of pregnancy in Florida to save the life and health of the mother. Abortion is also available when the pregnancy results from rape, incest, or human trafficking, or has a fatal fetal abnormality.”

This means Florida already allows for abortions later in a pregnancy for the reasons people get a late-term abortion. According to the latest data from AHCA, only three abortions have been performed in the third trimester in 2024: two because of a fatal fetal abnormality, and one because of a serious fetal genetic defect, deformity or abnormality.

Before this year, the last time AHCA recorded a third-trimester abortion was in 2019.

In 2024 to date, 47,215 abortions have taken place in the first trimester, and 3,006 have taken place in the second trimester.

“Nobody is doing abortions at term,” Prager said. “People end pregnancies at later gestations for lots of reasons, and sometimes with a goal of resulting in a live fetus, and sometimes not, depending on what the situation is. Let’s say somebody has had no prenatal care and discovers at eight months that their baby doesn’t have a brain. There’s no point in, you know, moving forward with another four weeks of pregnancy when you know that no matter what, this fetus is not going to survive.”

WHY HAS THERE BEEN SO MUCH CONFUSION ABOUT PROTECTING THE HEALTH AND LIFE OF THE MOTHER?

We’ve seen several stories come out in the last year about women having problems with their pregnancy and being turned away from care, not just in Florida but in other states with similar abortion bans. Floridians Defending Freedom has produced television ads with several of these women telling the stories.

Sobel says the confusion lies in the requirements of state law. The current law requires two physicians to agree, in writing that the abortion is necessary to save the pregnant woman’s life, or avoid a serious risk of “substantial and irreversible physical impairment of a major bodily function.” In a situation in an emergency room, that requires two physicians who are available to make that judgment. What do you do if only one doctor is available? What do you do if a doctor has a conscientious objection?

Sobel says another issue is that it’s not always immediately clear what is going wrong with a pregnancy, or how serious the immediate risk is. She points to wording the AHCA guidance, for instance, that says “a miscarriage is not an abortion.” Sobel says that if someone is bleeding and they go to the hospital, they know something is wrong, but it may be a miscarriage or it may be something else.

“I don’t know what that would do for a hospital because it’s saying a miscarriage doesn’t count as an abortion, but what about an abortion that’s needed to complete a miscarriage?” Sobel said.

Prager says there is no exhaustive list of what could go wrong with a pregnancy, just like there is no exhaustive list of fatal fetal abnormalities.

“I mean, 150 years ago, 50% of women died from pregnancy complications,” Prager said. “Twenty percent risk of death in each pregnancy. Any number of pregnancy complications, high blood pressure, ectopic pregnancy, molar pregnancy, preeclampsia, hemorrhage, you name. And in any of these complications, there may be a need to abort the pregnancy.”

Prager’s concern is that putting requirements on determining when there is a risk could lead to a worse situation.

“If you’re starting to say, ‘Well, this condition versus that condition,’ you’re starting to say, ‘A person has to be this close to death before we’re allowed to intervene and save their life.’ That, to me, is the opposite of what being a healthcare provider is,” Prager said.

WHO COUNTS AS A HEALTH CARE PROVIDER UNDER AMENDMENT 4?

Florida has a couple definitions for health care provider on its books that range from highly specific to overly broad, depending on the statute.

Under the “Florida Patient’s Bill of Rights and Responsibilities,” which is part of Florida law, a health care provider is defined as a physician, osteopathic physician, podiatric physician or an advanced practice registered nurse.

Under the “Health Care Advance Directives” statutes, a health care provider is defined as “any person licensed, certified, or otherwise authorized by law to administer health care in the ordinary course of business or practice of a profession.”

And under the “right of medical conscience of health care providers and health care payors” statute, the definition includes people ranging from doctors to massage therapists to hearing aid specialists.

However, Virelli points out that any health care provider would have to, by law, be able to perform abortions within their scope of care.

“It is also important to remember that people don’t have a right to practice medicine in any capacity unless they are licensed to do so,” Virelli said. “I don’t get to start providing medical (or health) care to people just because I decide independently that I am qualified to do so. I need a license from the state and the state is in charge of deciding what those licensing requirements are. The same is going to be true of who gets to perform abortions under Amendment 4. So absolutely not, a person who ‘considers themselves a healthcare provider’ cannot just start offering abortion services without at minimum being criminally liable for something like practicing medicine without a license.”

WHAT WILL THIS DO TO CURRENT LAWS IN FLORIDA?

“So the six-week ban will be unconstitutional because it will violate the pre-viability right guaranteed by Amendment 4,” Virelli said. “That doesn’t mean that the issue is entirely put to rest. The legislature will still have the opportunity to pass laws about abortion as long as they don’t violate the amendment.”

Virelli also said that laws regarding abortion may have to be relitigated, like requirements to have an ultrasound before an abortion, or whether patients who are on Medicaid should be able to get the program to pay for the abortion. That would require someone to sue the state over it.

WHAT ABOUT PARENTAL CONSENT?

Florida voters enshrined in the Florida Constitution the right of parents to be notified if a child has an abortion. This amendment specifically does not do anything to that right.

However, the amendment says nothing about whether a parent has to consent before an abortion can take place.

The Parental Notice of and Consent for Abortion Act was passed in 2020, and requires a parent or legal guardian to be notified about a minor terminating a pregnancy at least 48 hours before the procedure.

The law also says a physician must obtain written consent from the parent or guardian before performing the abortion.

Virelli said the constitutionality of the parental consent law would also be something for the courts to decide, if a lawsuit was brought forth.

“Interestingly, under Roe, parental consent was permitted. In other words, states could require parental consent without violating women’s rights to terminate her pregnancy,” Virelli said. “So the legislature is going to have opportunities to define the details of access to abortion.”

The bottom line:

A YES vote on Amendment 4 means you support allowing abortions in Florida before viability, with exceptions for the health and life of the mother.

A NO vote on Amendment 4 means you do not support the amendment as it is written, which means Florida’s current laws on abortion will remain in place.

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