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How a proposed constitutional amendment protecting abortion rights in Florida could impact access in the state

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(NEW YORK) — A proposed amendment in Florida that would enshrine abortion rights in the state’s constitution is currently at the center of a battle that could be taken up by the state’s Supreme Court.

State Attorney General Ashley Moody and other groups have asked Florida’s highest court to prevent the Amendment to Limit Government Interference with Abortion from being put on the ballot for a vote in the 2024 election.

The proposed amendment reads, in part, “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.”

Floridians Protecting Freedom, the initiative’s main sponsor, and the ACLU of Florida filed response briefs to the attorney general’s challenge, arguing that the ballot initiative’s language is clear and does not mislead voters, as opponents have claimed.

The effort to include the initiative on the Florida ballot comes on the heels of Ohio voters approving a constitutional amendment during last week’s election that guarantees access to abortion and other aspects of reproductive health care.

Currently, abortion is banned at 15 weeks or later in Florida, according to the Guttmacher Institute, a research group that studies sexual and reproductive rights.

Patients seeking abortion are required to make two trips: the first for an in-person appointment, and the second 24 hours later for the abortion itself.

Additionally, only physicians are allowed to perform abortions and not other qualified health care professionals, the Guttmacher Institute says.

As of Monday, Floridians Protecting Freedom has collected more than 491,000 signatures of the 891,523 required to place the Amendment to Limit Government Interference with Abortion on the ballot. However, the number of signatures collected is already enough to qualify it for ballot summary review by the Florida Supreme Court.

If the amendment makes it onto the ballot and is subsequently passed by a majority of voters, it would protect abortion up until the fetus can survive outside the womb, which is generally considered to be between 24 and 26 weeks’ gestation. It would also make Florida the eighth state to protect abortion rights or prevent further restricting those rights, via a ballot imitative, since the Supreme Court voted to overturn Roe v. Wade in June 2022

There is no language in the proposed Florida amendment addressing what type of health care professional is or is not allowed to perform an abortion, or whether there is a mandatory 24-hour wait period between requesting an abortion and receiving one, as the law currently requires.

If the amendment doesn’t make it on the ballot, or if it does but isn’t passed by a majority of voters, that failure could help clear the way for a six-week abortion ban to be enacted.

In April 2023, Florida Gov. Ron DeSantis signed a six-week abortion ban into law, replacing the previous 15-week ban. The legislation makes exceptions for when a woman’s life or health is at risk and for cases of rape or incest, under certain conditions.

Two physicians currently must certify in writing that an abortion is necessary to save the woman’s life or to avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman. If two physicians are not available, one physician must certify in writing the above, as well as that a second physician is not available to consult.

For abortions in the case of rape or incest, the exceptions allow the procedure to be performed up to 15 weeks into the pregnancy, and if the woman provides a copy of a restraining order, police report, medical record or other court order or documentation proving that she’s a victim of rape or incest.

Currently, the 15-week ban is on hold while the Florida Supreme Court decides whether it’s constitutional, following challenges by the Center for Reproductive Rights and other groups. If the 15-week ban is upheld, then the six week-ban will be allowed to go into effect.

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