DeSantis says Florida amendment allows abortions ‘until birth.’ What’s true?

TALLAHASSEE — Since the Florida Supreme Court cleared an abortion-rights amendment for the November ballot, Gov. Ron DeSantis has criticized the proposal as “incredibly radical” and allowing “abortion up until birth” — a claim the amendment’s backers say is false.

“It’s not something that occurs,” Floridians Protecting Freedom campaign director Lauren Brenzel said. “You don’t have abortion until the moment of birth. It doesn’t make sense.”

The argument, one of several that conservatives are making, is likely to be repeated as Republicans frame their campaign against the abortion amendment in Florida ahead of November. And depending on what voters believe, it could influence whether the amendment passes with 60% support, the threshold needed to change Florida’s constitution.

What to know

DeSantis’ statement is technically true, but lacks important context. Under the language of the amendment, abortions could legally be allowed “up until birth” for health reasons — but Florida law already permits abortions with no hard cutoff for limited health reasons. And that will remain true under Florida’s impending six-week ban, which DeSantis signed and is set to take effect in early May.

Opponents of the amendment, though, say that health-related exceptions under the initiative for abortions past viability — typically considered to be around 24 weeks — would be different and would open the door to more abortions than what is allowed under Florida’s current law.

DeSantis’ office didn’t respond to questions.

Abortion frequency and restrictions

Data from Florida and other states around the country show that abortions performed later in a pregnancy would likely be rare and related to difficult situations, including significant and potentially fatal health complications for either the mother or the fetus.

“You don’t continue 40 weeks of a pregnancy with all the pregnancy-related health complications that occur and then just wake up one day and change your mind,” said Shelly Tien, who challenged Florida’s 15-week ban and who works as an OB-GYN for Planned Parenthood in South, East and North Florida.

Only 1% of abortions are performed at or after 21 weeks, according to 2021 Centers for Disease Control and Prevention data collected from 40 states, including Florida, and New York City. Data have historically shown that procedures later in pregnancies are uncommon.

As far back as 1992, between 0.02% and 0.04% of abortions were estimated to have been performed after 26 weeks, according to a paper published by JAMA, a peer-reviewed medical journal.

From 2019 to present, there have been three abortions in the third trimester in Florida — defined in state law as 24 weeks or later — out of more than 400,000 abortions performed in total, according to state data.

Two took place in 2019, one for a life-endangering physical condition and another because of a serious fetal genetic defect. Another happened this year because of a fatal fetal abnormality, according to state reports. The state data doesn’t specify whether any of these third-trimester abortions were at birth.

Whether those numbers would increase as a result of the amendment — which states in part that 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” — is guesswork.

Just a few years ago, when Florida’s only restrictions on abortion were in the third trimester or after viability, instead of the current 15-week ban, about 4% of abortions in the state happened beyond 15 weeks, according to state data from 2018 to 2021.

In 2023, the first full year that the 15-week ban was in effect, the number of abortions past that point dropped to 0.19%.

In November, state economists determined that, if passed, the amendment’s baseline policies were essentially the same as the policy under Roe v. Wade.

Still, while the amendment would create a framework in Florida that is similar to the one patients had in the state in 2021, it would likely have broader health exceptions allowing for more abortions past viability. There are a number of state restrictions on the books, such as requiring a parent’s consent for a minor’s abortion, that could conflict with the amendment. Courts will likely have to sort it out.

Under Roe in 2021, lawmakers prohibited all abortions in the third trimester or after viability, with limited health exceptions for the mother that still exist today under the 15-week ban and will continue to exist under the six-week ban that will go into effect in May.

Except in emergency situations, those exceptions require that two doctors sign off that the abortion procedure is needed to “save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition.”

Robyn Schickler, the chief medical officer for Planned Parenthood of Southwest and Central Florida, said though Florida has existing health exceptions, they “don’t encompass all of the nuance to things that we see as health care providers.”

If the amendment passed and was upheld in court, it could potentially override restrictions like the two-doctor signoff requirement, relying instead on just “the patient’s health care provider.” Supporters of the amendment say the government should be kept out of decisions that belong in the hands of doctors and mothers.

Any physician who performs an illegal abortion in Florida faces a third-degree felony charge, and could serve five years in prison and owe a $5,000 fine. If the woman dies as a result, the physician could be charged with a second-degree felony, serve up to 15 years in prison and owe a $10,000 fine.

Michelle Morton, policy counsel with the ACLU of Florida, a member of the statewide coalition sponsoring the amendment, pointed to a culture of fear among physicians in the state, saying by email, “providers should not have to risk criminal prosecution to treat the patient in front of them.”

“In Florida, we’ve already seen that narrow health exceptions written by politicians put people in danger. Patients are getting turned away from care even in medical emergencies, like Anya Cook,” Morton said, referring to a South Florida woman who was denied an abortion after her water broke at 16 weeks pregnant and ended up in intensive care. “With the near-total ban going into effect in a few weeks, this is about to get much worse.”

Would a mental health exception allow abortions until birth in Florida?

One factor that could open the possibility to additional abortions later in pregnancies: whether the amendment would allow physicians to consider mental health when making their decision, something Florida ended in 2014.

Kelsey Pritchard, director of state public affairs for Susan B. Anthony Pro-Life America, which opposed the amendment, said by email that the initiative would allow providers to “justify abortions at any point in pregnancy for virtually any reason under this gaping, undefined, ‘health’ exception.”

But when Attorney General Ashley Moody argued the same point in a brief before the Florida Supreme Court, the amendment group’s attorney dismissed it — saying it was just “speculation about potential future arguments over the amendment’s legal effect.”

So, is it the case that a mental health issue would be a justification for an abortion under the amendment? Possibly. The courts will likely decide.

But one doctor cast doubt on how broadly the amendment’s exceptions would be interpreted by physicians in practice.

“If you have a state Legislature kind of breathing down your neck, how sick does someone have to be before you run the fear of losing your license and not being able to practice?” said Diane Horvath, who performs abortions in Maryland, where, in contrast to the proposal in Florida, there are no restrictions on adults.

Horvath does the procedure in an outpatient setting until 34 weeks. A typical pregnancy is 40 weeks. She said she will perform the procedure later in pregnancy for a number of reasons, such as when the fetus won’t survive, or the woman’s health is at risk, or she has a physically abusive partner, or if she traveled from a restrictive state like Florida and couldn’t get access to an abortion earlier.

“The people who are finding themselves in the circumstances of needing abortions later in pregnancy are facing really, really difficult circumstances,” Horvath said. “People are really thoughtful about these decisions, and I know that if I didn’t intervene in some of these pregnancies, these people would go on to have a delivery. I know that. I think we can acknowledge that that’s true.”

But, Horvath said, “my No. 1 priority is the well-being of the patients in front of me.”

Horvath said hospitals in Maryland will provide abortions beyond 34 weeks. But she said these are likely not the scenarios voters may imagine when listening to “inflammatory” language from DeSantis and former President Donald Trump, who recently claimed that Democrats support “execution after birth.” She said it would probably be more like a situation where a fetus is diagnosed with a serious birth defect such as “anencephaly,” in which it would be missing parts of its brain and skull and would not survive upon delivery.

“So if this were diagnosed at 39 or 40 weeks, it would be standard to offer labor induction” with hospice care for the delivered fetus, or after using medication to stop the fetus’ heart before delivery, Horvath said by email. “Lots of people wouldn’t consider this an abortion (they might just say it’s a delivery), but it’s an induction abortion all the same.”

In the case where the mother would choose to deliver the fetus without stopping its heartbeat, and instead opt for the fetus to receive hospice care, it would be because she wanted to spend as much time with the fetus as possible and grieve, Horvath said.

This scenario Horvath described, where a mother delivers a fetus that gets hospice care, could qualify under state law as a fetus “born alive.” Florida tracks these fetuses born alive, which has happened about seven times a year, on average, since 2019, according to state data. Fetuses born alive due to induction abortions are not “botched abortions,” Horvath said. They are planned and at the family’s request.

And regarding Trump’s April 8 video statement that Democrats support “execution after birth”?

“No abortions are happening after birth, as Trump states,” Horvath said. “That’s pure fiction.”

Miami Herald staff writer Max Greenwood contributed to this report.