HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1221 Disability Abortions
SPONSOR(S): Professions & Public Health Subcommittee, Grall and others
TIED BILLS: IDEN./SIM. BILLS: SB 1664
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Professions & Public Health Subcommittee 11 Y, 7 N, As McElroy McElroy
CS
2) Health & Human Services Committee 12 Y, 8 N, As McElroy Calamas
CS
SUMMARY ANALYSIS
Prenatal screening and diagnostic tests are used to identify and diagnose genetic disorders in fetuses. These
genetic disorders include chromosomal disorders, neural tube defects and some defects of the abdomen,
heart, and facial features.
CS/CS/HB 1221 prohibits a physician from performing an abortion if the physician knows, or should know, that
the woman is seeking the abortion solely on the basis of a test result or diagnosis of a disability or the potential
of a disability. The bill provides an exception to this prohibition if the disability abortion is necessary to save the
life of the mother. The bill defines disability as any disease, defect or disorder that is genetically inherited
including:
 A physical disability.
 A mental or intellectual disability.
 A physical disfigurement.
 Scoliosis.
 Dwarfism.
 Down syndrome.
 Albinism.
 Amelia.
 A physical or mental disease
The bill requires the Department of Health (DOH) to include educational information on prenatal genetic
disorders, including resources and support services for families, in its genetic disorders clearinghouse. The bill
also requires a health care practitioner who orders or administers a prenatal screening or diagnostic test to
provide the patient with the educational information from the clearinghouse if the test results indicate a genetic
disorder.
The bill may have an insignificant, negative fiscal impact on the Department of Health and the Agency for
Health Care Administration, which current resources are adequate to absorb.
The bill has no fiscal impact on local governments.
The bill provides an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 4/7/2021
 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Federal Law on Abortion
In 1973, the foundation of modern abortion jurisprudence, Roe v. Wade1, was decided by the U.S.
Supreme Court. Using strict scrutiny, the Court determined that a woman’s right to an abortion is part of
a fundamental right to privacy guaranteed under the Due Process Clause of the Fourteenth
Amendment of the U.S. Constitution. Further, the Court reasoned that state regulation limiting the
exercise of this right must be justified by a compelling state interest, and must be narrowly drawn.2 In
1992, the fundamental holding of Roe was upheld by the U.S. Supreme Court in Planned Parenthood
v. Casey.3
The Viability Standard
In Roe v. Wade, the U.S. Supreme Court established a rigid trimester framework dictating when, if
ever, states can regulate abortion.4 The Court held that states could not regulate abortions during the
first trimester of pregnancy.5 With respect to the second trimester, the Court held that states could only
enact regulations aimed at protecting the mother’s health, not the fetus’s life. Therefore, no ban on
abortions is permitted during the second trimester. The state’s interest in the life of the fetus becomes
sufficiently compelling only at the beginning of the third trimester, allowing it to prohibit abortions. Even
then, the Court requires states to permit an abortion in circumstances necessary to preserve the health
or life of the mother.6
The current viability standard is set forth in Planned Parenthood v. Casey.7 Recognizing that medical
advancements in neonatal care can advance viability to a point somewhat earlier than the third
trimester, the U.S. Supreme Court rejected the trimester framework and, instead, limited the states’
ability to regulate abortion pre-viability. Thus, while upholding the underlying holding in Roe, which
authorizes states to “regulate, and even proscribe, abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother[,]”8 the Court determined that
the line for this authority should be drawn at “viability,” because “there may be some medical
developments that affect the precise point of viability . . . but this is an imprecision within tolerable limits
given that the medical community and all those who must apply its discoveries will continue to explore
the matter.”9 Furthermore, the Court recognized that “[i]n some broad sense it might be said that a
woman who fails to act before viability has consented to the State’s intervention on behalf of the
developing child.”10
Undue Burden
In Planned Parenthood v. Casey, the U.S. Supreme Court (Supreme Court) established the undue
burden standard for determining whether a law places an impermissible obstacle to a woman’s right to
an abortion. The Court held that health regulations which impose undue burdens on the right to
abortion are invalid.11 State regulation imposes an “undue burden” on a woman's decision to have an
abortion if it has the purpose or effect of placing a substantial obstacle in the path of the woman who
1 Roe v. Wade, 410 U.S. 113 (1973).
2 Id.
3 Casey, 505 U.S. 833 (1992).
4 Roe, 410 U.S. 113 (1973).
5 Id. at 163-64.
6 Id. at 164-165.
7 Planned Parenthood of SE Pa. v. Casey, 505 U.S. 833 (1992).
8 See Roe, 410 U.S. at 164-65.
9 See Casey, 505 U.S. at 870.
10 Id.
11 Id. at 878.
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 seeks the abortion of a nonviable fetus.12 However, the court opined, not every law which makes the
right to an abortion more difficult to exercise is an infringement of that right.13
The Medical Emergency Exception
In Doe v. Bolton, the U.S. Supreme Court was faced with determining, among other things, whether a
Georgia statute criminalizing abortions (pre- and post-viability), except when determined to be
necessary based upon a physician’s “best clinical judgment,” was unconstitutionally void for vagueness
for inadequately warning a physician under what circumstances an abortion could be performed.14 In its
reasoning, the Court agreed with the district court decision that the exception was not unconstitutionally
vague, by recognizing that:
[T]he medical judgment may be exercised in the light of all factors—physical, emotional,
psychological, familial, and the woman's age-relevant to the well-being of the patient. All
these factors may relate to health. This allows the attending physician the room he needs
to make his best medical judgment.15
This broad interpretation of what constitutes a medical emergency was later tested in Casey16, albeit in
a different context. One question before the Supreme Court in Casey was whether the medical
emergency exception to a 24-hour waiting period for an abortion was too narrow in that there were
some potentially significant health risks that would not be considered “immediate.”17 The exception in
question provided that a medical emergency is:
[T]hat condition which, on the basis of the physician’s good faith clinical judgment, so
complicates the medical condition of a pregnant woman as to necessitate the immediate
abortion of her pregnancy to avert her death or for which a delay will create serious risk of
substantial and irreversible impairment of a major bodily function.18
In evaluating the more objective standard under which a physician is to determine the existence of a
medical emergency, the Court in Casey determined that the exception would not significantly threaten
the life and health of a woman and imposed no undue burden on the woman’s right to have an
abortion.19
Florida Abortion Law
Right to Abortion
The Florida Constitution, as interpreted by Florida courts, affords greater privacy rights than
those provided by the U.S. Constitution. While the federal Constitution traditionally shields
enumerated and implied individual liberties from state or federal intrusion, the U.S. Supreme
Court has noted that state constitutions may provide greater protections.20 Unlike the U.S.
Constitution, Article I, s. 23 of the Florida Constitution contains an express right to privacy:
Every natural person has the right to be let alone and free from
governmental intrusion into the person’s private life except as otherwise
12 Id. at 877
13 Id. at 873.
14 Doe, 410 U.S. at 179 (1973). Other exceptions, such as in cases of rape and when, “[t]he fetus would very likely be born with a
grave, permanent, and irremediable mental or physical defect.” Id. at 183. See also, U.S. v. Vuitich, 402 U.S. 62, 71-72 (1971)
(determining that a medical emergency exception to a criminal statute banning abortions would include consideration of the mental
health of the pregnant woman).
15 Doe, 410 U.S. at 192.
16 Casey, 505. U.S. 833 (1992).
17 Id. at 880.
18 Id. at 879 (quoting 18 Pa. Cons. Stat. § 3203 (1990)).
19 Id. at 880.
20 Pruneyard Shopping Center v. Robins, 100 S.Ct. 2035, 2040 (1980), cited in In re T.W., 551 So.2d 1186, 1191 (Fla. 1989).
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 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.
The Florida Supreme Court opined in In re T.W. that this section provides greater privacy rights than
those implied by the U.S. Constitution.21
The Florida Supreme Court has recognized Florida’s constitutional right to privacy “is clearly implicated
in a woman’s decision whether or not to continue her pregnancy.”22 In In re T.W., the Florida Supreme
Court ruled that:23
[P]rior 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. Following
this point, the state may impose significant restrictions only in the least
intrusive manner designed to safeguard the health of the mother.
Insignificant burdens during either period must substantially further
important state interests….Under our Florida Constitution, the state’s
interest becomes compelling upon viability….Viability under Florida law
occurs at that point in time when the fetus becomes capable of
meaningful life outside the womb through standard medical procedures.
The court recognized that after viability, the state can regulate abortion in the interest of the unborn
child if the mother’s health is not in jeopardy.24
The state may regulate abortion pre-viability based upon its interest in maternal health
beginning in the second trimester. In Fla. Women's Medical Clinic, Inc. v. Smith the court held
that the state has an interest in maternal health only after the first trimester, not before, and may
not impose substantive clinical standards in the first trimester.25
Abortion Regulation
In Florida, abortion is defined as the termination of a human pregnancy with an intention other
than to produce a live birth or to remove a dead fetus.26 An abortion must be performed by a
physician27 licensed under ch. 458, F.S., or ch. 459, F.S., or a physician practicing medicine or
osteopathic medicine in the employment of the United States.28
In Florida, abortion is defined as the termination of a human pregnancy with an intention other than to
produce a live birth or to remove a dead fetus.29 An abortion must be performed by a physician30
licensed under ch. 458, F.S., or ch. 459, F.S., or a physician practicing allopathic or osteopathic
medicine in the employment of the United States.31
All abortions, whether in the first trimester or later, are subject to the following requirements:
21 Id. at 1191-1192.
22 Id. at 1192.
23 Id. at 1193.
24 Id. at 1194.
25 Fla. Women's Medical Clinic, Inc. v. Smith, 478 F.Supp. 233 (S.D. Fla. 1979); Fla. Women’s Medical Clinic, Inc. v. Smith, 536
F.Supp. 1048 (S.D. Fla. 1982).
26 Section 390.011(1), F.S.
27 Section 390.0111(2), F.S.
28 Section 390.011(8), F.S.
29 Section 390.011(1), F.S.
30 Section 390.0111(2), F.S.
31 Section 390.011(8), F.S.
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  An abortion may only be performed in a validly licensed hospital, abortion clinic, or in a
physician’s office;32
 Proper medical care must be given and used for a fetus when an abortion is performed during
viability;33
 Experimentation on a fetus is prohibited;34
 Except when there is a medical emergency, an abortion may only be performed after a patient
has given voluntary and written informed consent,35 which includes verification of the fetal age
via ultrasound imaging;36
 Fetal remains are to be disposed of in a sanitary and appropriate manner;37 and
 Partial-birth abortions are prohibited.
Abortions performed after the first trimester are also subject to clinical standards set by the
Agency for Health Care Administration (AHCA) in rule, including: 38
 Adequate private space for interviewing, counseling, and medical evaluations;
 Dressing rooms for staff and patients;
 Appropriate lavatory areas;
 Areas for preprocedure hand washing;
 Private procedure rooms;
 Adequate lighting and ventilation for procedures;
 Surgical or gynecological examination tables and other fixed equipment;
 Postprocedure recovery rooms that are equipped to meet the patients’ needs;
 Emergency exits to accommodate a stretcher or gurney;
 Areas for cleaning and sterilizing instruments;
 Adequate areas for the secure storage of medical records and necessary equipment and
supplies; and
 Conspicuous display of the clinic’s current license issued by AHCA.
The Department of Health and AHCA have authority to take licensure action against practitioners and
clinics, respectively, which violate licensure statutes or rules.39 Additionally, any person who willfully
performs, or actively participates in, an abortion in violation of these requirements commits a third
degree felony and commits a second-degree felony if the woman dies.40
Prenatal Genetic Testing
Genetic disorders can be identified through carrier testing, prenatal screening tests and prenatal
diagnostic tests. Carrier testing can be performed prior to or during any point during a pregnancy.
Carrier testing detects whether an individual carries a gene mutation related to certain genetic
disorders.41
Prenatal genetic screening tests are performed during the first and second trimesters of pregnancy and
are used to identify potential genetic disorders. During the 10th through 13th weeks of pregnancy blood
tests and a nuchal translucency screening, which measures the thickness at the back of a fetuses neck,
are conducted.42 Blood tests screen for Down syndrome, trisomy 13, trisomy 18 and sex chromosome
abnormalities.43 An abnormal nuchal translucency screening indicates an increased risk for Downs
32 Section 797.03 (1), F.S. A third trimester abortion may only be performed in a hospital
33 Section 390.0111(4), F.S.
34 Section 390.0111(6), F.S.
35 Section 390.0111(3), F.S. A physician violating this provision is subject to disciplinary action.
36 Section 390.0111(3)(a)1.b., F.S.
37 Section 390.0111(8), F.S. A person who improperly disposes of fetal remains commits a second degree misdemeanor.
38 Section 390.012(3)(a)1., F.S. Rules related to abortion are found in ch. 59A-9, F.A.C.
39 Section 390.018, F.S.
40 Section 390.0111(10), F.S.
41 Prenatal Screening Tests, American College of Obstetricians and Gynecologists, available at https://www.acog.org/womens-
health/faqs/prenatal-genetic-screening-tests (last viewed on April 2, 2021).
42 Id.
43 Id.
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