CAN I BE ARRESTED FOR HAVING OR PERFORMING AN ABORTION?

By: Guy Fronstin, Esq. and Richard Silverman, Duke Law Student

Not to provide the classic lawyer response, but here’s the truth: it depends.

It depends on who you are. It depends on where you are. And it depends on how far along you, or the patient, are.

This past week will likely go down as one of the most impactful, and perhaps infamous, in recent Supreme Court history. Every year, the Supreme Court receives over 8,000 appeals and typically selects to hear only 70-80 of them. This year, one of the appeals selected was a challenge to Roe v. Wade, which garnered national media coverage, endless and polarized political debate, and public outcry.

On June 24, 2022, not only did Americans receive the Court’s 6-3 decision overturning Roe in Dobbs v. Jackson Women’s Health Organization, but the Court also opined on Second Amendment rights, the rights of inmates on death row, the ability of state officials to intervene in lawsuits, civil liability for law enforcement officers that fail to administer suspects their Miranda rights, and freedom of religion. Now, while all these decisions can and, in many instances, will reverberate throughout state laws and statutes, the Dobbs decision undoubtedly sent the most shockwaves throughout the country. Justice Alito declared abortion has no basis in the U.S. Constitution.

So, what impact does the overturning of Roe v. Wade have on the state of Florida?

For the past thirty years, Florida has guaranteed its citizens a broad right of privacy, which includes a relatively strong protection for abortion. Under current state law, women may receive abortions up to 24 weeks, and Florida is not one of the country’s thirteen states with an abortion “trigger law,” an unenforceable law that bans abortion and becomes enforceable upon a change in circumstance such as a Supreme Court ruling. However, that does not mean that the Supreme Court’s decision leaves the Sunshine State unaffected.

On April 14, 2022, Governor Ron DeSantis signed a 15-week abortion ban into law, and with the Supreme Court’s ruling, its implementation becomes a real possibility. This week, opposition arguments were presented in Florida Court by the American Civil Liberties Union and Planned Parenthood to prevent this restrictive regulation from going into effect Friday, July 1, 2022.

HB 5: Reducing Fetal and Infant Mortality, as it stands, only permits exceptions after 15 weeks if the pregnancy threatens the life of the mother, poses a risk of substantial and irreversible physical impairment of a major bodily function, or there exists a fatal fetal abnormality. Those that oppose the bill argue it violates the Florida Constitution, and that the judge’s decision will determine whether women will be forced to continue pregnancies caused by rape, incest, and human trafficking.

While Floridians await this monumental decision, HB 5 posits an inevitable result of the Dobbs ruling. The Supreme Court has effectively created a geographic relevancy in the abortion landscape: where people live will define their level of access to abortion. Fortune 500 companies such as Amazon, Disney, Estée Lauder, Meta, Netflix, Nike, Starbucks, and Tesla are rallying to bridge this geographical gap as they offer to cover their employees’ abortion-related travel costs. Perhaps this is an employee benefit that will one day become universal.

However, what if the bill goes into effect and women do not work for a company that covers travel expenses?**

First and foremost, if a woman gets an abortion after 15 weeks, she will not be arrested and charged with a crime. Doctors, on the other hand, may be found guilty of a third-degree felony, punishable by a $5,000 fine, up to five years in prison, and a revocation of their medical license.

Therefore, assuming doctors will not conduct illegal procedures, the reality is that women in Florida will need to travel to another state where it is legal to have an abortion. Given the existing and pending anti-abortion laws in Alabama, Georgia, and South Carolina, Floridians will have to travel to North Carolina, which currently serves as the closest haven state for women all over the Southeast, with abortion remaining legal up to 20 weeks.

While the future remains to be seen, the Law Offices of Guy Fronstin and Criminal Defense Clinics will stay up to date on Florida abortion policy to ensure women and healthcare professionals receive the information and representation they deserve. Contact us anytime to learn more about this massive change in the law governing abortions and the impact it may have on you and your liberty.

** On June 30, 2022, a Florida judge ruled HB 5 unconstitutional and issued a statewide injunction, halting the bill’s implementation. Abortion thus remains legal in Florida up to 24 weeks, turning the state into the new haven of the South.