[*] Sole Practitioner, Tallahassee, Fla. B.A., Florida Atlantic University, 1973; J.D., Florida State University School of Law, 1977; LL.M., Georgetown University Law Center, 1982. The author is a Florida lawyer practicing in the area of state constitutional rights. In 1989 she was one of two lead attorneys prevailing in In re T.W., 543 So. 2d 837 (Fla. 1989). She was also Legislative Counsel for the ACLU of Florida from 1987 through 1994. Return to text.

[1] See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (holding that a state statute proscribing the use of contraceptives violated married couples' right to privacy implied in the Bill of Rights); Eisenstadt v. Baird, 405 U.S. 438, 454 (1972) (holding that a state statute proscribing the use of contraceptives violated unmarried individuals' privacy rights). Return to text.

[2] See generally Keeler v. Superior Ct., 470 P.2d 617, 628 (Cal. 1970) (holding that the defendant could not be charged for the murder of an unborn fetus pursuant to the state statute because the Legislature did not intend to include unborn fetuses in the definition of "human being," but intended "human being" to have the common law meaning of a person born alive); Jones v. Commonwealth, 830 S.W.2d 877, 880 (Ky. 1992) (holding that the defendant can be charged for the murder of a baby if the injuries causing death were inflicted to the fetus prior to the birth and the baby was born alive); Davis v. Davis, 842 S.W.2d 588, 596 (Tenn. 1992) (finding that frozen embryos, in a custody dispute, are not human beings but should be afforded more respect than human tissue because of the embryos' potential to become human beings). Return to text.

[4] See, e.g., Tanner v. Hartog, 696 So. 2d 705, 706 (Fla. 1997) (finding expectant parents cann ot prevail on a wrongful death claim because a fetus is not a person, See, e.g., Tanner v. Hartog, 696 So. 2d 705, 706 (Fla. 1997) (finding expectant parents cannot prevail on a wrongful death claim because a fetus is not a person, but holding expectant parents can prevail on a claim for the emotional suffering inflicted by the birth of the stillborn fetus due to the doctor's negligence). Return to text.

[5] See State v. Ashley, 670 So. 2d 1087, 1089 (Fla. 2d DCA), reh'g granted, 678 So. 2d 339 (Fla. 1996), quashed in part, 22 Fla. L. Weekly S682 (Fla. Oct. 30, 1997). Ashley involved a woman who could not afford to pay for an abortion. At the beginning of her third trimester of pregnancy and after weeks of unsuccessfully attempting to raise the necessary money, she shot herself in the abdomen "to hurt the baby." A Caesarean section was performed. There was a live birth. The bullet had passed through the wrist of the fetus. The infant lived for 15 days and died as a result of multi-organ problems caused by premature birth and not by the bullet wound. See id. at 1088.

The state charged Ashley with manslaughter, under section 782.07, Florida Statutes, and with felony murder under section 782.04(4), Florida Statutes. The latter charge was based on committing the felony of performing an illegal abortion on herself, contrary to section 390.001(10)(a), Florida Statutes. Section 390.001(10)(a) makes it a third degree felony for anyone other than a physician to perform an abortion. In an interlocutory appeal, the court threw out the illegal abortion charge and upheld the simple manslaughter charge because the infant was born alive and then died indirectly due to Ashley's actions. See id. at 1093.

The Florida Supreme Court held the state cannot prosecute Ashley for either murder or manslaughter because the statute failed to explicitly trump the long-standing common law that holds a woman who self-inflicts injuries while pregnant cannot be criminally liable for the death of her fetus if it dies after birth. See State v. Ashley, 22 Fla. L. Weekly S682, S683 (Fla. Oct. 30, 1997). Moreover, the court concluded that the Legislature had not evidenced an intent to "pit woman against fetus in criminal court." Id. at S683. Return to text.

[6] See Johnson v. State, 602 So. 2d 1288, 1292 (Fla. 1992). Return to text.

[7] The willful killing of an unborn "quick" child by an injury to the mother is manslaughter if the injury was inflicted in such a way as would have made it murder if the injury caused the mother's death. See FLA. STAT. 782.09 (1997); see also Williams v. State, 15 So. 760, 760 (1894) (affirming the defendant's manslaughter conviction for beating his pregnant wife with a club, causing the premature birth of her baby, who subsequently died due to the battery). Although criminal charges have been filed under circumstances where a fetus has died as a result of a criminal act toward the pregnant woman, appellate review of the statute's constitutionality has been prevented because the state has charged the perpetrator under a different, inapplicable statutory section, the injury was followed by a live birth prior to the infant's death, or some other condition was not met that prevented challenging the validity of the statute on appeal. See, e.g., Knighton v. State, 603 So. 2d 71, 72 (Fla. 4th DCA 1992) (affirming a third-degree murder charge because the defendant shot a bullet into the head of a viable fetus who, although born alive, died as a direct result of the gunshot wound). Return to text.

[8] See, e.g., Fla. HB 1205 (1997) (Woman's Right-To-Know Act). Return to text.

[9] See Fla. SB 2304 (1997) (Employee Health Care Access Act). Return to text.

[10] See Fla. CS for HB 1227 (1997) (Abortion Method Ban Bill). Return to text.

[11] In 1988, the Parental Consent Abortion Law was enacted. See Act effective Oct. 1, 1988, ch. 88-97, 6, 1988 Fla. Laws 460, 462-63 (amending FLA. STAT. 390.001(4)(a) (1987)) (requiring physicians performing abortions on minors to obtain the written consent of the minor's parent, custodian, or legal guardian or permitting the physician to rely on a judicial order). Return to text.

[12] See Act effective July 1, 1997, ch. 97-151, 1997 Fla. Laws 2501 (amending FLA. STAT. ch. 390 (1995 & Supp. 1996)). Return to text.

[14] See id. ' 390.0 111(3)(c).

See Presi See id. 390.0111(3)(c). Return to text.

[15] See Presidential Women's Ctr. v. State, No. 97-5796 (Fla. 15th Cir. Ct. July 2, 1997) (order granting preliminary injunction), appeal docketed, No. 97-2557 (4th DCA filed July 24, 1997). Return to text.

[16] 410 U.S. 113 (1973). Return to text.

[17] See id. Prior to Roe, the Court upheld a provision of the District of Columbia Code criminalizing abortion because it "[did] not outlaw all abortions, but only those that are not performed under the direction of a competent, licensed physician, and those not necessary to preserve the mother's life or health." United States v. Vuitch, 402 U.S. 62, 70 (1971). The decision expressly defined "health" as including all aspects of a woman's physical and mental health. See id. at 72. Return to text.

[18] See Roe, 410 U.S. at 153-54.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
Id. at 153. Return to text.

[19] See id. at 158. Return to text.

[20] See id. at 164. But see Planned Parenthood v. Casey, 505 U.S. 833, 873 (1992) (retreating from the strict trimester framework as an overly rigid paradigm for protecting a woman's right to choose to have an abortion). Return to text.

[21] See Roe, 410 U.S. at 163 ("With respect to the State's important and legitimate interest in the health of the mother, the 'compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester."). Based on medical knowledge, the Court explained that mortality rates in abortion can be less than mortality rates in normal childbirth. See id. Return to text.

[22] See id. Return to text.

[23] See id. Return to text.

[24] Id. Return to text.

[25] Id. Return to text.

[26] See id. at 163-64. Return to text.

[28] 505 U.S. 833 (1992). Return to text.

[29] See id. at 876 (holding that the state can regulate abortion as long as it does not place a substantial burden on a woman's ability to have an abortion prior to viability). Return to text.

[30] See id. at 878. Return to text.

[31] See Planned Parenthood v. Miller, 63 F.3d. 1452, 1460, 1463 (8th Cir. 1995) (holding unconstitutional parental notification provisions, a criminal penalty provision, and a civil penalty provision of a South Dakota abortion statute), cert. denied sub nom, Janklow v. Planned Parenthood, 116 S. Ct. 1582 (1996); Fargo Women's Med. Org. v. Schafer, 18 F.3d 526, 533-35 (8th Cir. 1994) (upholding the constitutionality of informed consent provisions, a 24-hour waiting period, and the definition of "medical emergency" in a North Dakota abortion statute). Return to text.

[32] See Women's Med. Prof'l Corp. v. Voinovich, 911 F. Supp. 1051, 1060 (S.D. Ohio 1995), aff'd, Nos. 96-3157, 96-3159, 1997 WL 713520, at *1 (6th Cir. Nov. 18, 1997) (holding unconstitutional an Ohio statute that only permitted post-viability abortions to be performed to prevent the pregnant woman's death or injury to a major bodily function, but not for abortions performed to preserve the pregnant woman's general health); Evans v. Kelly, 1997 WL 471906 at *37 (E.D. Mich. July 31, 1997) (enjoining a Michigan statute that banned partial birth abortion); Planned Parenthood v. Woods, No. 97-385, (D. Ariz. Oct. 24, 1997) (enjoining an Arizona statute criminalizing partial birth abortion). Return to text.

[33] See Casey, 505 U.S. at 893-94 (striking down a Pennsylvania spousal consent requirement in abortion procedures); Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1113 (5th Cir. 1997) (holding unconstitutional a Louisiana parental consent law because it did not impose specific time limits for judicial bypass proceedings and failed to require that judges must authorize abortions for minors who were found to be mature or when an abortion would be in the minors' best interest). Return to text.

[34] See Casey, 505 U.S. at 887, 899. Return to text.

[35] See Harris v. McRae, 448 U.S. 297, 324 (1980). Return to text.

[36] See Webster v. Reproductive Health Servs., 492 U.S. 490, 521 (1989). Return to text.

[37] See Casey, 505 U.S. at 872, 880 (citing Roe v. Wade, 410 U.S. 113, 164-65 (1973)). Return to text.

[38] See Planned Parenthood v. Danforth, 428 U.S. 52, 77-79 (1976) (striking down a Missouri statute that banned saline induction abortions after the first 12 weeks of pregnancy), partially overruled by Planned Parenthood v. Casey, 505 U.S. 833 (1992) (overruling the holding that provisions of an abortion law requiring informed consent and a 24-hour waiting period were unconstitutional). Return to text.

[39] U.S. CONST. amend. X. Return to text.

[40] Id. amend. IX. Return to text.

[41] See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (holding that a state may adopt reasonable restrictions on private property in a state constitution if the restrictions do not violate the U.S. Constitution); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800 (1995) (holding that states cannot impose additional qualifications required for candidates to serve in the U.S. Congress than are already established in the U.S. Constitution); United States v. Darby, 312 U.S. 100, 124 (1941) (holding that Congress can exclude from interstate commerce goods that have been manufactured in a way that damages citizens' welfare). Return to text.

[42] See Casey, 505 U.S. at 998. Return to text.

[43] See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). Return to text.

[44] See Pruneyard, 447 U.S. at 81; Traylor v. State, 596 So. 2d 957, 961 (Fla. 1992) (explaining that courts must first evaluate whether the admission of the defendant's confession as evidence violated the state constitution before evaluating whether it violated the federal Constitution); William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 491 (1977); Rachel E. Fugate, Comment, The Florida Constitution: Still Champion of Citizens' Rights?, 25 FLA. ST. U. L. REV. 87 (1997). Return to text.

[45] 551 So. 2d 1186 (Fla. 1989). Return to text.

[46] See id. at 1191 (quoting Katz v. United States, 389 U.S. 347 (1967)) (footnotes omitted). Return to text.

[47] See id.

Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.
Id. at 1191-92 (quoting Winfield v. Division of Pari-Mutuel Wagering, 477 So. 2d 544 (Fla. 1985)). Return to text.

[48] See Traylor, 596 So. 2d at 962 ("In any given state, the federal Constitution thus represents the floor for basic freedoms; the state constitution, the ceiling.") (citation omitted). Return to text.

[49] See id. Return to text.

[50] See State v. Barquet, 262 So. 2d 431, 435 (Fla. 1972). But see State v. Owen, 696 So. 2d 715, 720 (Fla. 1997) (holding that the Florida Constitution does not impose greater restrictions on law enforcement than those required by the U.S. Constitution). Return to text.

[51] Barquet, 262 So. 2d at 435 (quoting 20 AM. JUR. 2D Courts 225 (1964)). Return to text.

[52] See FLA. STAT. 390.001(4)(a) (Supp. 1988), repealed by Act effective May 30, 1991, ch. 91-223, 6, 1991 Fla. Laws 2166. Return to text.

[53] See Act effective Oct. 1, 1988, ch. 88-97, 6, 1988 Fla. Laws 460, 462-63 (amending FLA. STAT. 390.001(4)(a) (1987)). Return to text.

[54] See Jacksonville Clergy Consultation Serv., Inc. v. Martinez, 696 F. Supp. 1445, 1448 (M.D. Fla. 1988), order dissolved, 707 F. Supp. 1301, 1304 (M.D. Fla. 1989). Return to text.

[55] See In re Emergency Amendments to Rules of Civil Procedure and Rules of Appellate Procedure, 536 So. 2d 198, 198 (Fla. 1988); FLA. STAT. 390.001(4)(a)(3) (Supp. 1988) ("The Supreme Court may promulgate any rules it considers necessary to ensure that proceedings brought pursuant to this paragraph are handled expeditiously and are kept confidential."). Return to text.

[56] See Jacksonville Clergy, 707 F. Supp. at 1304. Return to text.

[57] See In re T.W., 543 So. 2d 837, 838 (Fla. 5th DCA), aff'd, 551 So. 2d 1186 (Fla. 1989). Return to text.

[58] See id. at 841. Return to text.

[59] See id. Return to text.

[60] See id. at 842. Return to text.

[61] See Stephen Koff, Justice Kennedy Says No to Florida Teen's Abortion, ST. PETE. TIMES, May 17, 1989, at A1. Return to text.

[62] See id. Return to text.

[63] See Ruth Marcus, Court Clears Way for Teen-Ager's Abortion, WASH. POST, May 19, 1989, at A7. Return to text.

[64] See id. Return to text.

[65] 492 U.S. 490 (1989). Return to text.

[66] See id. at 506. Return to text.

[67] Justice Antonin Scalia, a conservative, was appointed to the court by President Ronald Reagan in 1986 to replace the seat left vacant by the resignation of Warren E. Burger. See Ruth Marcus, Rehnquist, Scalia Take Their Oaths; Reagan Lauds Burger at Retirement, WASH. POST, June 19, 1986, at A14. Justice Anthony M. Kennedy, a moderate conservative, was appointed by Ronald Reagan to replace the seat vacated by Lewis F. Powell, Jr. See Al Kamen, Kennedy Confirmed, 97-0; Senate Approves Supreme Court Nomination, WASH. POST, Feb. 4, 1988, at A1. Return to text.

[68] See Andrea Sachs, Abortion on the Ropes: Is the Historic Roe v. Wade Ruling About to Be Overturned?, TIME, Dec. 1988, at 58. Return to text.

[69] See Proclamation of Governor Martinez (July 25, 1989) (available at Fla. Dep't of State, Div. of Archives, ser. 13, carton 40, Tallahassee, Fla.); see also Tim Nickens, Capitol Set for Abortion Throng, ST. PETE. TIMES, July 28, 1989, at B6. Return to text.

[70] See Robert Post, Webster's Chaotic Aftermath, L.A. TIMES, July 6, 1989, 2, at 7 (detailing the negative impact the decision could have on the pro-choice movement); Ford Fessenden et al., The Abortion Decision Foes Elated by Ruling, NEWSDAY, July 4, 1989, at 5.; Ethan Bronner, Ruling in Missouri Case, Narrows Roe v. Wade, BOSTON GLOBE, July 4, 1989, at 1. Return to text.

[71] See Webster v. Reproductive Health Servs., 492 U.S. 490, 506 (1989). Return to text.

[72] See id. at 519. Return to text.

[73] In Webster, two restrictions were approved. One allowed public medical facilities to refuse to perform abortions unless necessary to save a woman's life. See id. at 507. The other required extensive medical tests to determine whether a fetus was viable prior to performing an abortion after 20 weeks gestation. See id. at 519-20. Return to text.

[74] See FLA. CONST. art. I, 23 ("Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law."). Return to text.

[75] See In re T.W., 551 So. 2d 1186, 1191-92 (Fla. 1989). Return to text.

[76] See id. at 1194-95. Return to text.

[77] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1989 SPECIAL SESSION C, HISTORY OF SENATE BILLS at 839, SB 3-C, SB 4-C, SB 9-C, SB 10-C, SB 11-C, SB 13-C; id., HISTORY OF HOUSE BILLS at 840-42, HB 4-C, HB 5-C, HB 9-C, HB 10-C, HB 17-C, HB 18-C, HB 19-C, HB 20-C, HB 21-C, HB 27-C, HB 28-C, HB 29-C, HB 30-C, HB 32-C, HB 34-C. Return to text.

[78] See id. Return to text.

[79] See Diane Rado et al., Lawmakers Reject Abortion Limits, ST. PETE. TIMES, Oct. 12, 1989, at A1. Return to text.

[80] See In re T.W., 551 So. 2d at 1191-93 (explaining that the Florida Constitution protects the right to privacy more broadly than the federal Constitution). Return to text.

[81] See FLA. STAT. 390.0111(4) (1997). Return to text.

[82] See In re T.W., 551 So. 2d at 1189. Return to text.

[83] See supra notes 8-12 and accompanying text. Return to text.

[84] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF HOUSE BILLS at 310, HB 1701. Return to text.

[85] Fla. CS for HB 1227 (1997) (substituted for Fla. CS for SB 1398 (1997)). Return to text.

[86] Fla. CS for HB 1227, 1(5) (1997) (proposed amendment to FLA. STAT. 390.011 (1995)). Return to text.

[87] See Veto of Fla. CS for HB 1227 (1997) (letter from Gov. Chiles to Sec'y of State Sandra Mortham, May 23, 1997) (on file with Sec'y of State, The Capitol, Tallahassee, Fla.). Return to text.

[88] See Fla. CS for HB 1227, 2(11)(a), (12) (1997) (proposed amendment to FLA. STAT. 390.001 (1995)). Return to text.

[89] Id. 2(6)(c). This is not the first attempt by a state to restrict abortion by banning a particular procedure. In 1976, before dilation and evacuation or dilation and intact extraction methods were available, the U.S. Supreme Court found a Missouri statute prohibiting saline induction abortions unconstitutional. See Planned Parenthood v. Danforth, 428 U.S. 52, 76-79 (1976), partially overruled by Planned Parenthood v. Casey, 505 U.S. 833 (1992). No cases have placed this precedent in question. Return to text.

[90] See Michelle Roman, The Partial-Birth Abortion Ban Act and the Undue Burden It Places on Women's Right to an Abortion: The Controversy over D&E, Dilation and Extraction, 18 WOMEN'S RTS. L. REP. 381, 381 (1997). Return to text.

[91] See Women's Med. Prof'l Corp. v. Voinovich, 911 F. Supp. 1051, 1070-71 (S.D. Ohio 1995), aff'd, Nos. 96-3157, 96-3159, 1997 WL 713520, at *1 (6th Cir. Nov. 18, 1997). Return to text.

[92] See id. at 1070-71. The court found D&X was safer than fluid induction, D&E, hysterotomy, and hysterectomy. See id. at 1070. In comparing the D&X procedure to D&E, which was not banned, the court explained, "it does not require sharp instruments to be inserted into the uterus with the same frequency or extent [] and does not pose the same degree of risk of uterine and cervical lacerations, due to the reduced use of forceps in the uterus." Id. Return to text.

[93] Hysterotomy is basically a Caesarean section performed before term. An alternative to D&X, it is "potentially more dangerous because the uterus is thicker than it is at the end of term, and the incision causes more bleeding and may make future pregnancies more difficult. . . . Both of these methods entail the risks associated with major surgical procedures, and are rarely used today." Id. at 1068. Return to text.

[94] Hysterectomy is more extreme than D&X because it requires the removal of the uterus through major surgery and results in total inability to bear children. See id. Return to text.

[95] Methods of Midtrimester Abortion, ACOG TECHNICAL BULL. (American College of Obstetricians and Gynecologists, Wash., DC), Oct. 1987, at 2. Return to text.

[96] See id. Return to text.

[97] See, e.g., Melissa Healy, Senate Upholds Veto of Late-Term Abortion Ban, L.A. TIMES, Sept. 27, 1996, at A13. Return to text.

[98] See Fla. CS for HB 1227, 2(6) (1997) (proposed amendment to FLA. STAT. 390.001 (1995)). Return to text.

[99] "'Partial-birth abortion' means a termination of pregnancy in which the physician performing the termination of pregnancy partially vaginally delivers a living fetus before killing the fetus and completing the delivery." Id. 1(5) (emphasis added). Return to text.

[100] No. 97-385 (D. Ariz. Oct. 24, 1997). Return to text.

[101] See id. at 22 (quoting the definition of "partial birth abortion" as "partially vaginally delivering a fetus before killing the fetus"). The defendants admitted the term "partial birth abortion" is not used in any medical text or treatise. See id. Return to text.

[102] See id. Return to text.

[103] See Fla. CS for HB 1227, 2(6)(c) (1997) (proposed amendment to FLA. STAT. 390.001 (1995)). Return to text.

[104] 262 So. 2d 431 (Fla. 1972). Return to text.

[105] Id. at 435. Return to text.

[106] See id. (noting that the treating physician could have been subject to a homicide charge if he failed to proceed with the abortion and the mother died, or up to seven years imprisonment if the pregnant woman did not die). Return to text.

[107] Id. Return to text.

[108] See Fla. CS for HB 1227, 2(6)(c) (1997) (proposed amendment to FLA. STAT. 390.001 (1995)). Return to text.

[109] See In re T.W., 551 So. 2d 1186, 1193-94 (Fla. 1989). Return to text.

[110] See id. Abortion rights supporters generally agree that after viability there must be a compelling reason for a woman to terminate a pregnancy and this reason must relate to the woman's life or her continued physical well-being. The Florida Supreme Court defined viability in In re T.W. as occurring "at that point in time when the fetus becomes capable of meaningful life outside the womb through standard medical measures." Id. at 1194. The court continued, "Until this point, the fetus is a highly specialized set of cells that is entirely dependent upon the mother for sustenance. No other member of society can provide this nourishment. The mother and fetus are so inextricably intertwined that their interests can be said to coincide." Id.

There is a distinction between whether a fetus can be viable outside the mother's body and whether it can survive outside the mother's body. It is generally accepted in the medical community that less than 40% of fetuses born preterm survive at less than 23 weeks. See Estelle B. Gauda & Christine A. Gleason, Neonatology, 275 JAMA 1823, 1824 (1996). Most of these surviving infants suffer significant disabilities, such as mental retardation, cerebral palsy, hearing loss, and visual impairment. See id. Return to text.

[111] Webster v. Reproductive Health Servs., 492 U.S. 490, 516 (1989) (quoting Roe v. Wade, 410 U.S. 113, 164 (1973). Return to text.

[112] See Planned Parenthood v. Casey, 505 U.S. 833, 880 (1992). The Court has also struck down a statutory ban on saline amniocentesis abortions because the ban forced women to terminate their pregnancies through procedures that were considerably more dangerous to their health than the banned procedure. See Planned Parenthood v. Danforth, 428 U.S. 52, 78 (1976). Return to text.

[113] See Planned Parenthood v. Woods, No. 97-385 (D. Ariz. Oct. 24, 1997); Women's Med. Prof'l Corp. v. Voinovich, Nos. 96-3157, 96-3159, 1997 WL 713520, at *1 (6th Cir. Nov. 18, 1997), aff'g 911 F. Supp. 1051, 1057 (S.D. Ohio 1995); Evans v. Kelly, 1997 WL 471906 at *37 (E.D. Mich. July 31, 1997).

In December 1995, a federal district court in Ohio granted an injunction against an Ohio law that was even narrower than the Florida bill. See Voinovich, 911 F. Supp. at 1057, 1092, aff'd, Nos. 96-3157, 96-3159, 1997 WL 713520, at *1 (6th Cir. Nov. 18, 1997). The Ohio bill created two separate bans. See id. at 1057. The first banned the use of the D&X procedure in all abortions performed before viability. See id. The bill also banned all D&X abortions performed after viability except where performed to save the life of the pregnant woman or to avoid serious risk of substantial damage to a major bodily function. See id. The United States Court of Appeals for the Sixth Circuit affirmed the injunction and found the law unconstitutional. See Women's Med. Prof'l Corp. v. Voinovich, Nos. 96-3157, 96-3159, 1997 WL 713520, at *1 (6th Cir. Nov. 18, 1997). Return to text.

[114] See FLA. H.R. JOUR. 1095 (Reg. Sess. Apr. 28, 1997). Return to text.

[115] See FLA. S. JOUR. 1148 (Reg. Sess. May 1, 1997). Return to text.

[116] See Veto of Fla. CS for HB 1227 (1997) (letter from Gov. Chiles to Sec'y of State Sandra Mortham, May 23, 1997) (on file with Sec'y of State, The Capitol, Tallahassee, Fla.). The Florida Legislature failed to take up the vetoed legislation for an override vote during the Special Session held November 3-7, 1997, and is now precluded from overriding the veto. See FLA. CONST. art. III, 8(b). Return to text.

[117] Repub., Bradenton. Return to text.

[118] Repub., Tampa. Return to text.

[119] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF HOUSE BILLS at 310, HB 1701. Return to text.

[120] The Senate does not have a carry-over provision in its rules. If the Senate sponsor wishes to pursue this issue, the bill must be refiled. Return to text.

[121] See Fla. HB 1701 (1997) (proposed amendment to FLA. STAT. 627.6699 (Supp. 1996)).

The standard health benefit plan shall include:
a. Coverage for inpatient hospitalization, except coverage for inpatient hospital care for induced abortions and related procedures is required only when such services are medically necessary to save the life of the mother; b. Coverage for outpatient services, but such coverage is required for induced abortions and related procedures only when such services are necessary to save the life of the mother; c. Coverage for newborn children pursuant to s. 627.6575; Id. 1(12)(b)(4)(a)-(c). "'Medically necessary' means, for purposes of covering procedures related to termination of pregnancy, those procedures and accompanying services necessary to save the life of the mother." Id. 1(3)(m). Return to text.

[122] Id. 1(3)(m). Return to text.

[123] Id. 1(12)(b)(4)(a)- (b) (emphasis added). Return to text.

[124] See id. Return to text.

[125] See Committee to Defend Reprod. Rights v. Myers, 625 P.2d 779, 799 (Cal. 1981); Doe v. Maher, 515 A.2d 134, 162 (Conn. Super. Ct. 1986); Roe v. Harris, No. 96977 (Idaho Dist. Ct. Feb. 1, 1994); Doe v. Wright, No. 91 CH1959 (Ill. Cir. Ct. Dec. 2, 1994); Moe v. Secretary of Admin. and Fin., 417 N.E.2d 387, 405 (Mass. 1981); Women of Minnesota v. Gomez, 542 N.W.2d 17, 32 (Minn. 1995); Jeannette R. v. Ellery, No. BDV-94-811 (Mont. Dist. Ct. May 22, 1995); Right to Choose v. Byrne, 450 A.2d 925, 940 (N.J. 1982); New Mexico Right to Choose v. Danfelser, No. 95-867 (N.M. Dist. Ct. July 3, 1995); Planned Parenthood Ass'n v. Department of Human Resources, 663 P.2d 1247, 1261 (Or. App. 1983), aff'd, 687 P.2d 785 (Or. 1984); Doe v. Celani, No. S81-84CnC (Vt. Super. Ct. May 26, 1986); Women's Health Ctr. v. Penepinto, 446 S.E.2d 658, 667 (W. Va. 1993). Return to text.

[126] See Renee B. v. State, No. 97-3983 (Fla. 2d Cir. Ct. filed March 8, 1995) (transferred from Palm Beach County July 21, 1997). Return to text.

[127] See FLA. ADMIN. CODE R. 59G-4.150(4)(a)(12), - 4.160(4)(a)(5), -4.230(4)(a)(11) (1996). Return to text.

[128] Orlando Gen. Hosp. v. Department of HRS, 567 So. 2d 962, 963 (Fla. 5th DCA 1990). Return to text.

[129] In re T.W., 551 So. 2d 1186, 1193 (Fla. 1989) (quoting Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 772 (1986)) (emphasis added) (citations omitted). Return to text.

[130] In re Dubreuil, 629 So. 2d 819, 823 (Fla. 1993) (holding that a patient has a constitutional privacy right to refuse medical treatment). Return to text.

[131] See Women's Health Ctr. v. Penepinto, 446 S.E.2d 658, 666 (W. Va. 1993); Moe v. Secretary of Admin. and Fin., 417 N.E.2d 387, 402 (Mass. 1981). Return to text.

[132] "'Medically necessary' means, for purposes of covering procedures related to the termination of pregnancy, those procedures and accompanying services necessary to save the life of the mother." Fla. HB 1701, 1(3)(m) (1997) (proposed amendment to FLA. STAT. 627.6699 (Supp. 1996)) (emphasis added). Return to text.

[133] See State v. Barquet, 262 So. 2d 431, 435 (Fla. 1972); see also supra Part IV.A.1. Return to text.

[134] See Barquet 262 So. 2d at 435 (noting that "necessary" is "'a word susceptible of various meanings . . . [i]t may import that which is only convenient, useful, appropriate, proper, or conducive to the end sought'") (quoting Doe v. Scott, 321 F. Supp. 1385, 1388 (N.D. Ill. 1971)). The Supreme Court has held that a statute reading "necessary for the preservation of the mother's life or health" instead of "necessary to preserve the life," if applicable after viability, could be constitutional and not void due to vagueness. See United States v. Vuitch, 402 U.S. 62, 70-72 (1971) (recognizing that physicians must routinely decide if an operation is necessary for mental or physical health whenever surgery is considered). Return to text.

[135] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF HOUSE BILLS at 309-10, HB 1701. Return to text.

[136] See id. Return to text.

[137] Repub., Winter Park. Return to text.

[138] Repub., Destin. Return to text.

[139] See FLA. S. JOUR. 1270 (Reg. Sess. May 1, 1997). Return to text.

[140] See Act effective July 1, 1997, ch. 97-151, 1997 Fla. Laws 2501 (amending FLA. STAT. ch. 390 (1995 & Supp. 1996)). Return to text.

[141] See Press Release from Exec. Office of the Gov., Gov. Lawton Chiles (May 23, 1997) (explaining the reasons for allowing the Woman's Right-To-Know Act to become law without his signature) (on file with the Exec. Office of the Gov., Tallahassee, Fla.). Return to text.

[142] See FLA. STAT. 390.0111(3)(a)-(c) (1997):

(a) Except in the case of a medical emergency, consent to a termination of pregnancy is voluntary and informed only if:
1. The physician who is to perform the procedure, or the referring physician, has, at a minimum, orally, in person, informed the woman of: a. The nature and risks of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision of whether to terminate a pregnancy. b. The probable gestational age of the fetus at the time the termination of pregnancy is to be performed. c. The medical risks to the woman and fetus of carrying the pregnancy to term. Id. Return to text.

[143] See id. 390.0111(3)(a)(2):

a. Except in the case of a medical emergency, consent to a termination of pregnancy is voluntary and informed only if:
. . . . 2. Printed materials prepared and provided by the department have been provided to the pregnant woman, is she chooses to view these materials, including: a. A description of the fetus. b. A list of agencies that offer alternatives to terminating the pregnancy. c. Detailed information on the availability of medical assistance benefits for prenatal care, childbirth, and neonatal care. Id. Return to text.

[144] See Presidential Women's Ctr. v. State, No. 97-5796 (Fla. 15th Cir. Ct. July 2, 1997) (order granting preliminary injunction), appeal docketed, No. 97-2557 (Fla. 4th DCA filed July 24, 1997). Return to text.

[145] Id. Return to text.

[146] In re T.W., 551 So. 2d 1186, 1193 (Fla. 1989) (emphasis added) (citations omitted). Return to text.

[147] See id. at 1194 (striking down a parental consent statute as a violation of article I, section 23 of the Florida Constitution, which guarantees a broader privacy right than that implicated in the federal Constitution). Return to text.

[148] 476 U.S. 747 (1986), overruled by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Return to text.

[149] Id. Return to text.

[150] See In re Dubreuil, 629 So. 2d 819, 823 (Fla. 1993). Return to text.

[151] It would be absurd to pass a law requiring that informed consent for any life-saving surgery, such as an appendectomy or melanoma removal, include information on hospice care and the availability of burial alternatives if the patient should choose not to undergo the procedure. Return to text.

[152] See Lisa M. Koonin et al., Pregnancy-Related Mortality Surveillance-United States, 1987-1990: Results (visited Dec. 15, 1997) treatmnt/guide/mmwr0897/preg/preg3.htm> (information provided by the Journal of the American Medical Association). Return to text.

[153] "Due to technological developments in second-trimester abortion procedures, the point at which abortions are safer than childbirth may have been extended into the second trimester." In re T.W., 551 So. 2d 1186, 1193 (Fla. 1989). Return to text.

[154] Florida law already requires informed consent of all patients undergoing medical procedures. See FLA. STAT. 766.103 (1997). A pregnant woman seeking an abortion knows if she does not have one she will almost certainly give birth to a child and that adoption, child support, and assistance with medical care for the indigent are options. Return to text.

[155] See Lambert v. Wickland, 117 S. Ct. 1169, 1172 (1997) (Montana statute); Planned Parenthood v. Casey, 505 U.S. 833, 901 (1992) (Pennsylvania statute); Ohio v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 452 (1983) (Ohio statute). Return to text.

[156] See In re T.W., 551 So. 2d at 1195. Return to text.

[157] Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Return to text.

[158] Colautti v. Franklin, 439 U.S. 379, 390 (1979); see also Smith v. Goguen, 415 U.S. 566, 572 n.8 ( 1974) (quoting Connally v. General Constr. Co., 269 U.S. 385 (1926)); Kolender v. Lawson, 461 U.S. 352, 357-58 (1983) (warning that due process is violated if a statute provides no clear standard of conduct and provides enforcement authorities with the unfettered freedom to act on nothing but their own preferences and beliefs); Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So. 2d 849, 854 (Fla. 1971) ("The underlying principle is that no man shall be held responsible for conduct which he could not reasonably understand to be proscribed."). Return to text.

[159] See FLA STAT. 390.0111(3)(b)-(c) (1997).

(b) In the event a medical emergency exists and a physician cannot comply with the requirements for informed consent, a physician may terminate a pregnancy if he or she has obtained at least one corroborative medical opinion attesting to the medical necessity for emergency medical procedures and to the fact that to a reasonable degree of medical certainty the continuation of the pregnancy would threaten the life of the pregnant woman. In the event no second physician is available for a corroborating opinion, the physician may proceed but shall document reasons for the medical necessity in the patient's records.
(c) Violation of this subsection by a physician constitutes grounds for disciplinary action under 458.331 or 459.015. Substantial compliance or reasonable belief that complying with the requirements of informed consent would threaten the life or health of the patient is a defense to any action brought under this paragraph. Id. Return to text.

[160] Id. Return to text.

[161] See id. 766.103. Return to text.

[162] See id. 390.0111(3). Return to text.

[163] See id. 390.0111(3)(c). Return to text.

[164] Id. Return to text.

[165] See Planned Parenthood v. Casey, 505 U.S. 833, 878 (1992). Return to text.

[166] 408 U.S. 104, 108 (1972). Return to text.

[167] Id. at 108-09 (footnote omitted). Return to text.

[168] FLA. STAT. 390.0111(3)(a)(1)(c) (1997). Return to text.

[169] Id. 390.0111(3)(a)(1)(a). Return to text.

[170] Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976) (construing a restaurant licensing statute); see also Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952) (construing a statute establishing time bars for worker's compensation); Moonlit Waters Apartments, Inc. v. Cauley, 651 So. 2d 1269, 1270 (Fla. 4th DCA 1995) (construing a statute governing cooperative leaseholds). Return to text.

[171] See FLA. STAT. 390.0111(3)(a)(1)(c) (1997). Return to text.

[172] See FLA. H.R. JOUR. 1086, 1087 (Reg. Session Apr. 28, 1997). Return to text.

[173] See FLA. STAT. 390.0111(3) (1997). Return to text.

[174] See Board of Education v. Barnette, 319 U.S. 624, 633-34 (1943) (holding that the First Amendment right to free speech includes the right to refrain from speaking). The right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind." See id. at 637. Return to text.

[175] See FLA. STAT. 390.0111(3)(c) (1997). Return to text.

[176] See Fla. S. Comm. on Health Care, CS for SB 1398 (1997) Staff Analysis 1 (Apr. 18, 1997) (on file with comm.). Return to text.

[177] FLA. STAT 390.0111(4) (1997) (emphasis added). Return to text.

[178] See Act effective July 1, 1979, ch. 79-302, 1, 1979 Fla. Laws 1596, 1615 (codified at FLA. STAT. 458.505(5) (1979)). Return to text.