Frames:
LEGISLATIVE EFFORTS TO LIMIT STATE REPRODUCTIVE PRIVACY RIGHTS

CHARLENE CARRES[*]

Copyright (c) 1998 Florida State University Law Review

I. INTRODUCTION
II. A BRIEF SUMMARY OF PRIVACY RIGHTS AS APPLIED TO ABORTION UNDER THE UNITED STATES CONSTITUTION
III. A BRIEF SUMMARY OF PRIVACY RIGHTS AS APPLIED TO ABORTION UNDER THE FLORIDA CONSTITUTION
A. In re T.W. and the Parental Consent Law
B. The Effect of Webster on In re T.W.
IV. ATTEMPTS TO RESTRICT ABORTION BY THE 1997 FLORIDA LEGISLATURE
A. The Abortion Method Ban Bill
1. Void-For-Vagueness
2. Failure to Protect Maternal Health
B. Restricting Coverage for Abortion by Private Insurance Companies
1. Privacy Rights
2. Void-For-Vagueness
C. Abortion Consent: The Woman's Right-To-Know Act
1. Privacy Rights and Consent
2. Equal Protection
3. Void-For-Vagueness
4. First Amendment Violations
V. CONCLUSION

I. INTRODUCTION

The right to decide without government interference whether and when to have children does not seem at all controversial when pregnancy prevention is the issue.[1] However, when there is a "potential life" at stake, the relationship between the right to decide and the right of the government to intrude becomes far more emotional and complex. "Potential life" or "personhood" is somewhat arbitrarily defined. Depending on one's religious or philosophic views, life may begin anywhere from conception to implantation to "quickening" to viability to survivability to birth.[2] In a recent poll of Florida voters, the pollsters came to this conclusion:

Pro-life voters see all life as a priori and the need to protect it self-evident. Pro-choice voters, on the other hand, see it not in black and white terms, but in many shades of gray. For these voters, not all life is necessarily meaningful and sacred. In the end, the debate over abortion is not about the rights of a woman versus the rights of the unborn, but the definition of life itself.[3]
The Florida Supreme Court has consistently ruled in tort cases that there is no "person" with any rights, standing, or entitlement to any damages until there is a live birth.[4] Although inapplicable to laws criminalizing involuntary abortion or abortion after viability,[5] this principle has been upheld as applied to criminal laws[6] with only one exception.[7]

Although the Florida Legislature entered the debate, its focus has not been on the definition of life itself. Rather, the Legislature has sought to impose procedural requirements on doctors performing abortions,[8] to restrict insurance coverage for abortions,[9] and to ban certain types of abortions.[10] However, prior to 1997, none of the Legislature's attempts to modify a woman's right to an abortion had been successful. Up until the 1997 Regular Session, the Florida Legislature had not passed a bill placing restrictions on abortion for nearly a decade.[11] In 1997, the Woman's Right-To-Know Act became law.[12] The Act requires that women seeking to terminate a pregnancy in Florida be provided with oral and printed information about specific aspects of pregnancy, abortion, and childbirth prior to the abortion procedure.[13] Physicians who violate the Act are subject to professional discipline, including license revocation.[14] The Act has been temporarily enjoined, and the injunction is being appealed by the state.[15]

Part II of this Article discusses the protections afforded women seeking an abortion under the U.S. Constitution, while Part III examines protections under the Florida Constitution. Part IV provides a constitutional analysis of the three bills restricting abortion that were considered by the 1997 Florida Legislature, most significantly The Woman's-Right-To-Know Act. Finally, Part V concludes that the restrictions in place prior to the passage of The Woman's-Right-To-Know Act maintained an appropriate balance between the pregnant woman's life and health and the life and health of the fetus.

II. A BRIEF SUMMARY OF PRIVACY RIGHTS AS APPLIED TO ABORTION UNDER THE UNITED STATES CONSTITUTION

In Roe v. Wade,[16] the United States Supreme Court struggled with the issue of determining at what point a state can constitutionally prevent a pregnant woman from terminating a "potential life."[1]7 The Roe Court defined fundamental reproductive privacy rights and the scope of the state's authority to regulate those rights.[18] The Court decided the word "person" did not include the unborn[19] and established a trimester framework as a paradigm to balance the pregnant woman's privacy interests with the state's interests in the health of the mother and the potential life of the fetus.[20]

Pursuant to Roe, the state's important and legitimate interest in the health of the mother becomes compelling at approximately the end of the first trimester.[21] During this stage, the doctor and patient are permitted to decide, without state interference, whether or not to terminate a pregnancy.[22] They may act on that decision free of government restrictions.[23] After this stage, the state can regulate abortion as long as the restrictions are reasonably related to the "preservation and protection of maternal health."[24]

At some point, generally at the beginning of the third trimester, viability of the fetus becomes an issue. This is because the fetus can presumably have a "meaningful life outside of the mother's womb."[25] Thus, after viability, the state can implement restrictions on abortion that extend as far as prohibition of the procedure.[26] However, the state may not impose restrictions on therapeutic abortions when the mother's life or health is at stake, even after viability.[27]

In Planned Parenthood v. Casey,[28] the U.S. Supreme Court retreated from the strict trimester framework.[29] The plurality held that restrictions that do not impose an "undue burden" on abortion are permissible and that states can express a preference for childbirth over abortion in their laws.[30] In response, state legislatures have attempted to impose, sometimes successfully, numerous restrictions on abortions to make them more difficult to obtain than other medical procedures.[31] Courts strike down these laws when they clearly restrict abortions throughout the pregnancy that are necessary to preserve the life or health of the pregnant woman.[32] Courts have also struck down laws that restrict abortions prior to viability, when the restriction does not promote maternal health or conflicts with women's privacy rights to make their own decisions about whether and when to have children.[33] However, the U.S. Supreme Court has approved carefully crafted state laws that require a brief waiting period prior to obtaining an abortion, detailed informed consent procedures, and parental consent for minors' abortions.[34] The Supreme Court has also approved a federal prohibition on the use of Medicaid funds to reimburse indigents for the costs of abortions[35] and a statutory ban on the use of public employees and facilities for abortions not performed to save the life of the pregnant woman.[36] However, the Court has not retreated from the holding in Roe that states cannot restrict abortion after viability when continuing a pregnancy would endanger the mother's health or life,[37] or prior to viability when the restriction is not reasonably related to maternal health.[38]

III. A BRIEF SUMMARY OF PRIVACY RIGHTS AS APPLIED TO ABORTION UNDER THE FLORIDA CONSTITUTION

The Tenth Amendment to the U.S. Constitution provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."[39] The Ninth Amendment to the U.S. Constitution provides, "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."[40] Thus, under the Tenth Amendment, state constitutions may contain a wide variety of provisions that will be deemed valid as long as they do not exceed the few restrictions the U.S. Constitution imposes on the exercise of governmental powers.[41] The Ninth Amendment makes it clear that citizens' rights are not limited to the ones defined and specifically included in the U.S. Constitution.[42]

The U.S. Supreme Court clarified that, through the Fourteenth Amendment, states are not permitted to infringe or violate the individual rights of citizens established under the U.S. Constitution.[43] In combination with the Ninth and Tenth Amendments, this requirement provides the foundation for the principle that states may not provide lesser or fewer protections of the individual rights already identified in the federal Constitution, but state constitutions are clearly authorized to provide additional rights or greater protections of federal rights.[44]

In In re T.W.,[45] the Florida Supreme Court explained this principle:

The Court, however, has made it clear that the states, not the federal government, are the final guarantors of personal privacy: "But the protection of a person's general right to privacy-his right to be let alone by other people-is, like the protection of his property and of his very life, left largely to the law of the individual States."[46]
Thus, article I, section 23 of the Florida Constitution, the "privacy amendment," extends more protection to individual privacy interests than does the federal Constitution.[47]

The difference in force and function between state and federal protection of rights addresses the impropriety of relying on U.S. Supreme Court cases, such as Casey, as the ultimate and binding authority to follow when determining whether state abortion restrictions meet state constitutional requirements. The U.S. Supreme Court's interpretation of the extent to which a state is prohibited from interfering with, infringing upon, or violating similar federal constitutional rights is merely a base line beneath which no state may fall.[48]

Therefore, as long as the state's protections do not fall below those afforded by the U.S. Constitution, the standard applied when testing whether an individual's state constitutional rights have been violated is the standard established by that state's supreme court.[49] The Florida Supreme Court has long rejected restricting the protection of individuals' state constitutional rights only to the same degree of protection provided by their federal counterparts.[50] For example, twenty-five years ago, just before Roe was decided, in a case successfully challenging Florida's statute making it a felony for doctors to perform abortions except where necessary to protect the pregnant woman's life, the Florida Supreme Court noted that:

"State courts are not bound to follow a decision of a federal court, even the United States Supreme Court, dealing with state law. Thus a state court is not bound to follow a decision of a federal court, even the United States Supreme Court, construing the constitution or a statute of that state."[51]
Despite the clear message that Florida's constitutional protection of privacy rights related to abortion is even stronger than the protection provided by the federal Constitution, the Florida Legislature attempted to restrict these rights by enacting a new law in 1988 requiring parental consent or a court order for minors' abortions.[52]

A. In re T.W. and the Parental Consent Law

Florida's Parental Consent Law went into effect on October 1, 1988.[53] It was temporarily enjoined by the United States District Court for the Middle District of Florida on October 6, 1988, because it failed to provide procedural protections for minors seeking to use the law's judicial consent bypass.[54] The Florida Supreme Court promulgated rules pursuant to the Parental Consent Law in order to ensure that the judicial bypass proceedings were conducted confidentially and expeditiously.[55] Thereafter, the district court granted the state's motion to dissolve the injunction on February 13, 1989.[56] The Plaintiffs appealed to the Eleventh Circuit, but by then the law was in effect.

In 1989, a minor in central Florida petitioned the circuit court for an order allowing her to have an abortion without her parent's consent.[57] Within forty-eight hours, the court found the law unconstitutionally vague and the young woman too immature to consent.[58] Despite holding the consent requirement unconstitutional, the judge refused to grant an order allowing her to proceed with the abortion without obtaining parental consent.[59] On May 12, 1989, the Fifth District Court of Appeal vacated the circuit court's order, allowing the minor to proceed with the abortion.[60] The Florida Supreme Court granted a stay of the Fifth District's mandate again postponing the abortion, but vacated the stay four days later. The court set In re T.W. for oral argument in September 1989 to determine the constitutionality of the parental consent law.[61] Only a few hours after the Florida Supreme Court dissolved the stay, U.S. Supreme Court Justice Anthony Kennedy issued an order, once again blocking the young woman's ability to have an abortion.[62] The U.S. Supreme Court set aside Justice Kennedy's order the following day.[63] This paved the way for the young woman to finally have the abortion.[64]

At the same time, Webster v. Reproductive Health Services[65] was pending in the U.S. Supreme Court. One of the issues addressed in Webster was whether or not a state could constitutionally declare that life begins at conception.[66] New appointments to the U.S. Supreme Court led people to believe the courts would be more conservative on this issue.[67] Abortion opponents touted Webster as the case that would overturn Roe.[68]

Florida's anti-abortion Governor, Robert Martinez, was more than ready to take advantage of this possible good fortune. Following the close of the 1989 Regular Session and prior to the Webster decision, Governor Martinez called a special legislative session for mid-October to consider implementing additional restrictions on abortion.[69] While the decision in In re T.W. was pending and after Governor Martinez called for the special session, the U.S. Supreme Court decided Webster.

B. The Effect of Webster on In re T.W.

The Webster decision disappointed both supporters and opponents of abortion rights.[70] Although the Court in Webster allowed Missouri to make the statement that life begins at conception, the Court prohibited the state from making abortion illegal.[71] The plurality decision retreated from the trimester framework established in Roe by upholding a Missouri statute requiring physicians to determine whether a fetus is viable prior to performing an abortion if the physician suspects the woman to be twenty weeks pregnant or more.[72] However, the plurality in Webster failed to clearly articulate what standard would replace the trimester framework.[73]

All of the briefs had been filed and the oral argument had been held in In re T.W. before the Webster decision was issued. As a result, the Florida Supreme Court ordered all parties to submit supplemental briefs on the effect of Webster on In re T.W. and Florida abortion laws. On October 5, 1989, less than two weeks before the special legislative session was to begin, the Florida Supreme Court issued its decision. In sum, the majority decided that the privacy rights provision of the Florida Constitution[74] protected decisions relating to reproduction more broadly than the federal Constitution.[75] Therefore, the court invalidated the parental consent law.[76]

After many committee meetings, much marching, and media coverage, the special session of the Florida Legislature convened that October. There were numerous bills pending that would have restricted abortion in various and sundry ways.[77] After two days of debate, each bill was voted down in committee.[78] The senators and representatives left Tallahassee without passing a single one.[79]

Abortion law in Florida remained unchanged and continues to follow Roe.[80] Abortion during the third trimester is illegal unless an abortion is necessary to save the life or preserve the health of the pregnant woman.[81] Prior to the third trimester, only laws necessary to protect the health of pregnant women and that do not interfere with a woman's right to choose to have an abortion will be considered valid.[82]

Since 1989, the Legislature has sought to restrict abortion rights in various ways, but until the passage of the Woman's Right-To-Know Act in 1997, each attempt failed to become law.[83] In addition to the Woman's Right-To-Know Act, the 1997 Legislature sought to impose several other restrictions on abortion. Although these efforts were unsuccessful in 1997, House Bill 1701 will be carried over to the 1998 legislative session, pursuant to House Rule 96.[84] Others will be offered again by legislators.

IV. ATTEMPTS TO RESTRICT ABORTION BY THE 1997 FLORIDA LEGISLATURE

A. The Abortion Method Ban Bill

The "Abortion Method Ban Bill,"[85] also known as the Partial-Birth Abortion Bill, prohibited abortions where the physician "partially vaginally delivers a living fetus before killing the fetus and completing the delivery."[86] The Governor vetoed the Abortion Method Ban Bill on May 23, 1997.[87] If the legislation had become law, a person performing such an abortion would have committed a third-degree felony and would have been subject to civil liability.[88] The only exception would have been when a "partial-birth abortion" was "necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury, provided that no other medical procedure would suffice for that purpose."[89]

The medical terms for these forms of abortion are dilation and evacuation (D&E) or dilation and intact extraction (D&X). Second and third trimester abortions comprise only a very small percentage of all abortions performed.[90] D&E and D&X are often used in second or third trimester abortions because they are the safest methods available for particular patients, and they are the methods most likely to assure women's future fertility.[91] The D&X procedure is less invasive than other abortion procedures and, therefore, poses a lower risk to maternal health.[92] The American College of Obstetricians and Gynecologists advises against the use of hysterotomy[93] and hysterectomy[94] "because of their prohibitively high mortality and morbidity."[95] Fluid induction abortions, such as saline, also have several contraindications, such as when a woman has hypertension or asthma.[96] Nevertheless, anti-abortion groups have painted D&X abortions as especially cruel and gruesome.[97]

1. Void-For-Vagueness

The Abortion Method Ban Bill would have prohibited most, if not all, D&X and D&E procedures whether performed before or after viability.[98] The Legislature did not define "living fetus" as opposed to "viable fetus."[99] This is clearly an effort to propagate the misconception that, short of a stillbirth, all fetuses are capable of life outside the womb. The fact that the language chosen by the bill's drafters is intentionally emotionally charged, rather than technically correct, it is also unconstitutionally vague.

The term "partial birth abortion" is ambiguous. In Planned Parenthood v. Woods,[100] the court enjoined a Partial Birth Abortion Act because the court found the definition of "partial birth abortion," which was similar to Florida's definition, to be susceptible to various interpretations.[101] The court held that the Act failed to sufficiently define the conduct it proscribed.[102]

Furthermore, the phrase "necessary to save the life of the mother" is also ambiguous.[10]3 In State v. Barquet,[104] the Florida Supreme Court held that a state statute restricting abortions to instances that are "necessary to preserve the life of [the] mother" is unconstitutionally vague and violates the Fourteenth Amendment of the U.S. Constitution.[105] The Court explained that the treating physician was at risk of being charged with a felony if he erroneously interpreted the language of the statute.[106] The court warned, "[t]his is precisely the kind of situation that the void-for-vagueness doctrine is intended to prevent."[107]

2. Failure to Protect Maternal Health

The most obvious constitutional violation is the failure of these bills to permit this form of abortion under circumstances where necessary to preserve the life of the pregnant woman for reasons other than the ones listed in the bill, or where necessary to preserve her health.[108]

The Florida Supreme Court has explained the importance of protecting women's health when crafting abortion laws. To be valid, abortion restrictions must protect the women's right to privacy in the first trimester, maternal health in the second and third trimester, and balance between the potential life of the fetus and the health of the pregnant woman in the third trimester.[109] The state's interest in maternal health is compelling after the first trimester, and the state's interest in the life of the fetus is compelling upon viability, when the fetus can potentially sustain a meaningful life outside of the womb, generally after the second trimester.[110]

Federal courts have also applied the standard that the promotion of maternal health is an appropriate justification for regulations in the second trimester. In Roe, the Court recognized that the state has "important and legitimate" interests in protecting maternal health, and in the potential human life. During the second trimester, the State "'may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.'"[111]

The Abortion Method Ban Bill failed to accommodate the need for an abortion where the health of the mother was at stake. Thus, the bill was unconstitutional. The U.S. Supreme Court in Casey held that a state must not proscribe abortion when continuing a pregnancy would endanger the mother's health or life.[112] Laws very similar to the Abortion Method Ban Bill were enjoined in Arizona and Ohio and held unconstitutional by the United States Court of Appeals for the Sixth Circuit and the United States District Court for the Eastern District of Michigan for being vague and overbroad in their definitions of the prohibited procedure, and for failing to protect maternal health.[113]

The Committee Substitute for House Bill 1227 was passed by the House by a vote of 84 to 31.[114] It was passed by the Senate by a vote of 28 to 9.[115] On May 23, 1997, however, Governor Lawton Chiles vetoed the legislation, citing its failure to provide an exception for the health of the pregnant woman.[116]

B. Restricting Coverage for Abortion by Private Insurance Companies

During the 1997 Regular Session, Representative Mark Flanagan[117] and Senator John Grant[118] introduced House Bill 1701 and Senate Bill 2304, respectively. House Bill 1701 has been carried over to the 1998 session pursuant to House Rule 96.[119] Senate Bill 2304 died in the Committee on Banking and Insurance on May 2, 1997.[120] If House Bill 1701 were to pass, the legislation would usurp a doctor's authority to determine when an abortion is medically necessary under certain private health insurance plans.[121] For coverage under a small employer standard or basic health benefit plan, the bill defines a "termination of pregnancy" as "medically necessary" only when "necessary to save the life of the mother."[122] The standard and basic health benefits plans must cover all medically necessary procedures, including inpatient hospitalization and outpatient services for "induced abortions and related procedures" unless "performed to save the life of the mother."[123] This excludes coverage of any hospitalization required to treat complications from a legal, outpatient abortion, such as a hemorrhage, unless the medical care is necessary to save the pregnant woman's life.[124]

Restrictions such as these influence and interfere with the ability of women, their families, and other loved ones in making what are clearly very private decisions about whether and when to have children. The fact that some may be able to afford an abortion without insurance reimbursement does not detract from the fact that this bill would provide a government incentive to insurance companies to make terminating a pregnancy more costly than carrying a pregnancy to term. The bill would impose administrative burdens on companies wishing to include coverage for abortion in circumstances that are not life threatening, but are medically necessary.

Twelve other states have struck similar restrictions as violative of privacy rights and equal protection.[125] In Florida, a lawsuit on related restrictions is pending in the Second Judicial Circuit in Leon County, Florida, challenging the prohibition against Medicaid funding for abortion unless it is necessary to preserve the life of the woman or if the pregnancy was the result of rape or incest.[126] Medicaid funds all medical services for eligible indigents that are deemed "medically necessary" except for abortion.[127] "Medically necessary" services have been defined as those that are "reasonably calculated to prevent, diagnose, correct, cure, alleviate, or prevent the worsening of a conditions" threatening life, causing pain or suffering, or resulting in illness.[128]

1. Privacy Rights

The Florida Supreme Court in In re T.W. discussed the privacy interests that are implicated when abortion restrictions are imposed:

The decision whether to obtain an abortion is fraught with specific physical, psychological, and economic implications of a uniquely personal nature for each woman. The Florida Constitution embodies the principle that "[f]ew decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision . . . whether to end her pregnancy. A woman's right to make that choice freely is fundamental."[129]
In addition, the Florida Supreme Court has also addressed the privacy violations that result when the state interferes with medical decisions in general.

Patients do not lose their right to make decisions affecting their lives simply by entering a health care facility. . . . [A] health care provider's function is to provide medical treatment in accordance with the patient's wishes and best interests, not as a "substitute parent" supervening the wishes of a competent adult. . . . A health care provider cannot act on behalf of the State to assert the state interests in these circumstances.[130]
The Florida's Constitution's stringent protections of reproductive choice require, at minimum, that the state remain neutral as to the exercise of the choice. Once the Legislature takes the steps to dispense funding that impacts women's constitutionally protected right to privacy, it must do so in a non-discriminatory fashion.[131]

2. Void-For-Vagueness

House Bill 1701 uses terms that have been consistently found unconstitutionally vague for more than twenty-five years. There is no substantive distinction between the bill's term "save the life" and the term "preserve the life" of the woman or mother. [132] The phrase "necessary to preserve the life of the mother" was found unconstitutionally vague by the Florida Supreme Court.[133] The court in Barquet reiterated the U.S. Supreme Court's position that the words "necessary" and "preserve" are susceptible to various interpretations.[134]

House Bill 1701 was scheduled to be heard twice in the House Health Care Services Committee.[135] Both times the Committee deferred a vote on the bill.[136] Conversely, Senate Bill 2304 was never placed on the agenda for hearing in the Banking and Insurance Committee.

C. Abortion Consent: The Woman's Right-To-Know Act

During the 1997 Regular Session, Representative Bob Brooks[137] and Senator Charles Clary[138] introduced House Bill 1205 and Senate Bill 746, respectively. The Committee Substitute for Senate Bill 746 was replaced by the Committee Substitute for House Bill 1205 on May 1, 1997,[139] and the Florida Legislature passed the bill on the same day.[140] On June 5, 1997, the Woman's Right-To-Know Act became law without the Governor's signature.[141]

The Woman's Right-To-Know Act requires a doctor performing abortions to provide prescribed, detailed information about abortion and its alternatives orally and in person to every patient, rather than using his or her judgment about what degree of information is appropriate for each patient and which of the office staff members would be best suited to provide this information.[142] The Woman's Right-To-Know Act also requires that an abortion patient be offered printed materials, prepared by the Florida Department of Health, describing fetal development and providing information on assistance for prenatal care, delivery, and adoption services.[143]

On July 2, 1997, the Woman's Right-to-Know Act was temporarily enjoined by the Fifteenth Judicial Circuit in Palm Beach County, Florida.[144] The court found:

[W]omen seeking to terminate pregnancies will be subjected to inaccurate and/or misleading information, be subjected to costly (both in time and emotion) delays waiting for physicians to personally, orally give the information required, and suffer needless emotional stress in receiving needless information in cases where a medical necessity (i.e. miscarriage) has mandated the termination of pregnancy.[145]
The Woman's Right-To-Know Act imposes a substantial burden on a woman's right to choose to have an abortion. Because the information required to be disseminated is misleading and emotionally charged, it could effectively dissuade some women from terminating their pregnancies, even when carrying the pregnancies to term may effect their health in a variety of ways, and perhaps even their lives.

The Florida Supreme Court has forbidden the state from expressing a preference for childbirth over abortion, especially in the first trimester of pregnancy. In In re T.W., the court said, "The state must prove that the statute furthers a compelling state interest through the least intensive means. Under Florida law, prior to the end of the first trimester, the abortion decision must be left to the woman and may not be significantly restricted by the state."[146] The state has articulated no risk to women's health requiring this prescribed consent procedure or any other compelling reason to dictate the informed consent process for abortion. Moreover, the state does not require this provision of information in any other medical situation. Because the Woman's Right-To-Know Act applies at any point in a pregnancy, it clearly and improperly applies to first trimester abortions.

1. Privacy Rights and Consent

Based on the privacy rights provision of the Florida Constitution, the Florida Supreme Court in In re T.W. decided that restrictions and extra regulations on abortion could not be imposed without a clear showing that they were necessary to protect the woman's health and life after the first trimester.[147] The U.S. Supreme Court warned in Thornburgh v. American College of Obstetricians and Gynecologists[148] that "[t]he states are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies."[149] The Florida Supreme Court has also held that a health care provider should not be forced to decide between the wishes of the state and the wishes of the patient.[150]

Laws mandating biased counseling for abortion treat women seeking abortions as though they were less thoughtful and informed about their medical decisions than any other group of people seeking medical care. These laws require pregnant women to be given information to inflict not-so-subtle state-sanctioned pressure on women to consider the interest of the fetus above their own, even when their lives or health may be at stake. This is a blatant intrusion of government into the private relationship between a woman and her doctor. Such an intrusion constitutes the Florida Legislature practicing medicine without a license.

2. Equal Protection

More often than not, terminating a pregnancy is a difficult and sad decision, but its physical ramifications are no more important than other forms of invasive surgery. However, the Act does not mandate that a doctor thrust detailed medical information on a man advised to undergo prostate surgery.[151] Moreover, this legislation does not require that information be provided to a woman about to experience other pregnancy-related medical procedures, such as Caesarean sections and prenatal care, despite the fact that Caesarean sections and vaginal childbirth both carry higher risks to the life and health of the woman than abortion does at any stage of the pregnancy.[152]

Clearly, the Legislature seeks to dissuade abortion. Since such precise information is not required to be given to women undergoing a more risky procedure or assuming the higher risks of continuing their pregnancies,[153] this legislation is intended to discourage women from following through on the constitutionally protected right to choose to terminate pregnancy.[154]

Even if the legislation is able to meet the U.S. Supreme Court's relaxed standards for abortion restrictions, it will not meet the more stringent standards required by the Florida Constitution. Despite the fact that the U.S. Supreme Court has upheld properly crafted parental consent requirements for minors' abortions,[155] the Florida Supreme Court has made it clear that such laws are unconstitutional under our state constitution unless the state has a compelling interest.[156]

3. Void-For-Vagueness

The Woman's Right-To-Know Act violates the due process clause of the Fifth and Fourteenth Amendments to the federal Constitution because it fails to set standards for what constitutes a pregnancy that is life-threatening. Moreover, it contains apparently conflicting provisions. Due process mandates that laws provide persons subject to regulation "a reasonable opportunity to know what [conduct] is prohibited, so that [they] may act accordingly."[157] A statute that is punitive in nature must be sufficiently defined "to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute."[158] The Woman's Right-To-Know Act contains numerous provisions that are vague and susceptible to challenge.

In an emergency situation where it is not possible to obtain the pregnant woman's written informed consent, the physician must still obtain at least one corroborative medical opinion attesting to the medical necessity for the procedure and the fact that the woman's life is threatened.[159] The only exception states, "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 medical records."[160]

This provision threatens the life and health of women whose pregnancies are life-threatening. Physicians may act conservatively when aggressive medical measures are necessary. If a corroborating physician cannot be found, this provision does not make it clear that the physician can proceed without risk of sanction. It only makes it clear that if he or she does proceed, the medical records must distinctly document the circumstances that threatened the woman's life.

Unlike other medical procedures, the Woman's Right-To-Know Act does not allow for appropriate forms of substitute consent, such as next-of-kin consent.[161] The only substitute consent the legislation allows is for mental incompetents who have had guardians appointed by a court.[162]

In a circumstance where a competent woman is unconscious, a physician risks losing his license to practice medicine if he or she is not certain that the patient has an imminent life-threatening condition caused by the pregnancy.[163] This is true even if the pregnant woman had earlier expressed her wish to undergo the procedure in the event that circumstances arose placing her life in jeopardy, unless the physician had also provided the required consent information and obtained her written consent.

The dangers of the Woman's Right-To-Know Act are not cured by the inclusion of the provision stating that "[s]ubstantial compliance or a 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."[164] The bottom line is that states may not constitutionally impose restrictions on abortion if it is necessary to preserve the woman's life or health at any time during a pregnancy.[165] The substantial compliance or reasonable belief provision still requires an interpretation of whether the physician acted appropriately when not seeking informed consent. Knowing that a decision to proceed without informed consent may be subject to "second guessing," a physician may not proceed in a manner that is in the woman's best interest for fear of civil or criminal prosecution.

A statute may also be vague if it is subject to arbitrary and discriminatory enforcement because it fails to provide explicit standards for those applying the law. As the Court explained in Grayned v. City of Rockford,[166] a law that does not provide clear standards for those who must apply it is void-for-vagueness because it "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."[167]

The Woman's Right-To-Know Act expressly states that the physician must inform the woman of the "medical risks to the woman and fetus" of carrying the pregnancy to term.[168] However, the Act also requires the physician to inform the woman of the "nature and risks of undergoing or not undergoing the proposed procedure," and does not limit itself to medical risks.[169] The principle of statutory construction that "express mention is implied exclusion"[170] indicates that the Act requires that information concerning only the medical risks related to carrying a pregnancy to term be provided, but that information concerning all the risks related to abortion be provided.[171] However, the plain meaning of the latter provision dictates that this information be broader than just the medical risks, and the legislative history of the Act bears this out.[172] Thus, the Act is subject to a reasonable interpretation that the information provided must include, but is not limited to, financial risks, social risks, emotional risks, and educational risks. All of these areas of a woman's life are undeniably and directly affected by her decision of whether and when to have a child.

The Act provides no guidance on which of a multitude of risks of undergoing or not undergoing the proposed procedure must be discussed and which might be skipped to avoid the statutory penalties. Thus, it is impermissibly vague. It requires doctors to become proficient in fields for which they are not professionally trained as specialists, such as neonatology, genetics, pathology of fetal abnormality, theology, philosophy, religion, and bioethics.

4. First Amendment Violations

The Woman's Right-To-Know Act requires the attending physician to recite the state-prescribed information and offer state-authorized materials to the patient.[173] Because these requirements may require physicians to act against their best medical judgment and to be couriers of the state's ideological message on abortion, the Act violates a physician's right to free speech as guaranteed by the First Amendment of the United States Constitution.[174]

The Act requires a physician to inform the woman about certain aspects of the nature of abortion and childbirth about which there is no consensus and for which a physician may not be trained. The Act requires a doctor to guess as to exactly what information is required to be provided to the patient and, if he or she speculates incorrectly, to be subject to disciplinary action.[175] This will have a chilling effect upon speech, deny women their constitutional rights, and deny physicians the right to speak and act as their professional training and consciences dictate.

V. CONCLUSION

No consensus exists in our society regarding the non-medical nature of abortion. Some see it as the cessation of a potential human life, but not an actual human life. Some see it as murder. Some see it as immoral. The Florida Supreme Court has described abortion as a most basic fundamental constitutional privacy right that a person may, up to the point of viability, exercise without governmental intrusion under Florida law.

The legislation's requirement that physicians inform women about the non-medical nature of continuing pregnancies to term presents similar difficulties. For some, the nature of childbirth represents a contribution to overpopulation, to others the most glorious and remarkable event in a person's life, to others a blessed occurrence and a gift from the Almighty, to others a shameful punishment for sin or the worst crisis they have ever faced, to others an opportunity to enlarge a family, and for others the potential destruction of the family unit. In the case of a pregnancy resulting from rape or incest, the stress and emotional difficulty of discussing the nature of abortion or childbirth are greatly compounded.

Nonetheless, the Woman's Right-To-Know Act requires physicians to provide information that is "material" to a woman's decision whether or not to undergo a termination of pregnancy, no matter what her particular circumstance might entail. There are no guidelines, standards, or definitions to advise the physician in understanding how much of the pregnant woman's medical or other personal history must be known to assure the physician's compliance.

The physician could be required to be aware of all factors that might possibly cause any complications or bad outcomes during stages of the pregnancy far more advanced than the stage at which the abortion would be performed. Physicians could also be required to be aware of exceedingly rare or statistically insignificant possibilities of complications depending on the physical condition of that particular patient. Physicians could also be required to be up-to-the-minute on statistical information if or when new medical developments begin to decrease or increase risks. The Act fails to specify with clarity the physician's responsibility concerning the information he or she is required to provide if the procedure or method being used is relatively new and if the degree of risk has changed or is not statistically known.

The statistics for Florida show that 80,040 abortions were induced in 1996.[176] Of these abortions less than one percent, or fewer than twelve, were performed after viability. Women still die in childbirth and from pregnancies that go wrong. Sometimes this is unexpected. At other times, however, women know how high the risk is and take it anyway.

The Woman's Right-To-Know Act did not change the preferential consideration given to a woman's life and health when either of these is in conflict with the life and health of her fetus. The Florida statute says:

If a termination of pregnancy is performed during viability, no person who performs or induces the termination of pregnancy shall fail to use that degree of professional skill, care, and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. . . . Notwithstanding the provisions of this subsection, the woman's life and health shall constitute an overriding and superior consideration to the concern for the life and health of the fetus when such concerns are in conflict.[177]
This has been the law in Florida for nearly twenty years[178] and continues to be the law. It constitutes an appropriate recognition that the protection of an existing human should take precedence over the protection of a fetus, whether viable or unviable. This is a good balance and should not be changed.