Florida has had a six-week ban on abortions since May 1, 2024. Fortunately, a proposed constitutional amendment to protect abortion access will appear on Florida’s ballot in November.
Leaving aside the absurdity of what is effectively a blanket ban on abortion, the current legislation for a six-week ban is riddled with omissions and ambiguities that confuse medical providers and put the health of their patients at great risk.
There are several such ambiguities within the defined terms of the law. For example, “fatal fetal abnormality” is defined as “a terminal condition that, in reasonable medical judgment, regardless of the provision of life-saving medical treatment, is incompatible with extrauterine life and will result in death at birth or immediately thereafter.”
But how imminent is “imminently thereafter”? There are countless medical conditions that are incompatible with life but have a survival range of only seconds to childhood, and it is impossible to predict with any certainty where within that range any case will fall.
Many of these conditions are also impossible to diagnose until amniocentesis or fetal anatomy scans, which can be completed no earlier than 15 and 18 weeks of gestation. On the very first day of my labor and delivery rotation in medical school, I encountered a patient pregnant with a baby with holoprosencephaly, a congenital abnormality in which the brain does not develop normally. Most affected babies do not survive early infancy.
Our patient was forced to carry the child to term, endure the hardships and non-material risks of childbirth, and watch her baby die on the second day of life. Would her case qualify as a “fatal fetal abnormality”? Was her baby’s death “imminent” enough for lawmakers?
An exception to the time limit for terminations is allowed to “save the life of the pregnant woman or to avert a serious risk of imminent, substantial and irreversible physical impairment of a major bodily function of the pregnant woman, other than a mental illness.”
Frustratingly, this exception fails to account for the variety of possible circumstances. For example, a family member was diagnosed with breast cancer while pregnant. Fortunately, she was late enough in her third trimester that her care team was able to induce labor shortly thereafter to deliver a healthy baby, while starting her cancer treatment as early as possible.
But what about those unfortunate women who are diagnosed with cancer earlier in pregnancy, but not early enough to terminate within the legal limit? Should they be forced to continue their pregnancies, even though delaying treatment will reduce their chances of surviving cancer? Again, the margins of “imminent” are unclear.
The scenarios discussed are just a handful of the many that occur therein, mostly based on personal exposure. Regardless of one’s moral and religious beliefs, there are medical realities that cannot be ignored.
What lawmakers fail to understand, or perhaps willfully ignore, is that most late-term abortions do not arise from a reckless disregard for human life, but from the most tragic and heartbreaking medical circumstances.
Normally, the law consists of both legislation and case law arising from it, which addresses the nuances of such legislation in order to resolve ambiguities in the application of the law.
But in the case of termination of pregnancy in Florida, the stakes are so high and the penalties so severe that health care providers are obviously unwilling to be the sacrificial lambs who must determine the limits of the law, even if they believe, based on their “reasonable medical judgment,” that their actions are consistent with the law.
Without case law to fill in the gaps, there is an effective stalemate on abortion care in Florida, even within the bounds of the written law. The glaring omissions and frequent ambiguities in the law betray at best a neglect of the legislators’ fundamental civic duties, and at worst a cruel deviousness designed to use uncertainty as a powerful deterrent. Neither alternative is acceptable.
Aryana M. Gharagozloo is an attorney and a fourth-year medical student at the University of Miami Miller School of Medicine. She is interested in pursuing a career in obstetrics and gynecology.
