One of two abortion bills under consideration in the Florida House of Representatives seeks to significantly reduce the amount of time women have to request an abortion, and if it doesn't contradict a Florida Supreme Court ruling, it certainly sidesteps it.
HB 839, which passed the Civil Justice Subcommittee late last month, would set the new limit for most abortions at 20 weeks after fertilization, back from the current limit of 24 weeks. The justification for the rule is, "The Legislature finds that by 20 weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain," and if a fetus can theoretically experience pain, it should be illegal to
terminate the pregnancy.
The rub comes from the 1989 case In re T.W., in which the court ruled that the state's regulatory interest "becomes compelling upon viability" and that the state has the power to restrict abortions once a fetus "becomes capable of meaningful life outside the womb through standard medical procedures."
The proposed revisions don't include a single instance of the word viability, Supreme Court be damned. Legislators seem likewise unperturbed by the shaky assumptions on which they've built their argument: A Florida House legal analysis of the bill even notes that "the concept of fetal pain and the capacity of the fetus to recognize pain are the subject of ongoing
research and debate" but that "some studies suggest that by 20-24 weeks, a fetus may have the physical structures to be capable of feeling pain."
The analysis doesn't include quotes from any of these studies but does cite two that put the actual pain-recognition time between 24 and 30 weeks.
Oh well, let's pass it anyway.
The second bill, HB 277, actually shares three cosponsors with the first but pushes back current prohibitions from 24 weeks to "viability," which, pending some legislative revision to scientific findings, appears that it wouldn't substantially modify current limits. An international study published in September 2007 found "the grey area [of viability] is 24 and 25 weeks gestation" and that, of seven medical ethics organizations, "all would provide intensive care at 26 weeks and most would not at 23 weeks."
We've put in calls for comment; keep an eye out for updates.