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PolitiFact FL: Do Florida women face felony charges for abortions? Fact-checking Newsom ad

Crowd of people sit on staircase outside at an abortion rally. Some hold signs in support of abortion rights.
Stephanie Colombini
WUSF Public Media
Abortion rights advocates have rallied in Florida for the past couple years as the state has increasingly tried to restrict access to the procedure.

Although the law is clear that physicians can be charged, whether pregnant women will face the same charge is ambiguous.

WLRN has partnered with PolitiFact to fact-check Florida politicians. The Pulitzer Prize-winning team seeks to present the true facts, unaffected by agenda or biases.

California’s Democratic Gov. Gavin Newsom and Florida’s Republican Gov. Ron DeSantis have long feuded over which state has the most freedoms and protections. The two tackled abortion during a Nov. 30 debate on Fox News.

Newsom recently said on X, formerly Twitter, that some women who have abortions in Florida, and the doctors who perform the procedure, could be jailed.

"Any woman who has an abortion after six weeks -- and any doctor who gives her care -- will be guilty of a felony. Abortion after six weeks will be punishable by up to 5 years in prison," Newsom posted on X Nov. 19. "That’s not freedom. That’s Ron DeSantis’ Florida."

Newsom also shared an ad by his political action committee, Campaign for Democracy, that shows a "wanted" billboard and mug shots of women and people in white lab coats who appear to be physicians.

Newsom narrates the ad and says: "Wanted, by order of Governor Ron DeSantis: Any woman who has an abortion after six weeks and any doctor who gives her care will be guilty of a felony. Abortion after six weeks will be punishable by up to five years in prison."

In April, DeSantis approved a bill that said anyone who "actively participates in" an abortion after six weeks of pregnancy commits a felony. That law would take effect if the Florida Supreme Court upholds a related 2022 law.

But who the felony charge applies to is up for debate. Although the 2023 law is clear that physicians can be charged, whether pregnant women will face the same charge is ambiguous.

DeSantis has said he does not want to jail women who have abortions.

Florida law says actively participating in an abortion is a felony

Nathan Click, Newsom’s political adviser, cited as evidence Florida’s 2023 "Heartbeat Protection Act." That law says physicians may not perform most abortions after six weeks of pregnancy. A subsequent section on penalties says that "any person who willfully performs, or actively participates in, a termination of pregnancy" commits a felony of the third degree.

That charge carries up to five years in prison.

The penalty language regarding someone who "participates in" an abortion was carried over to the 2023 law from a 1990s law.

Florida Democratic lawmakers have introduced bills to modify the law to say that it does not apply to pregnant women who terminate their pregnancies.

Law professors told PolitiFact that if lawmakers wanted only physicians to be charged, they could have specified that in the law.

"I don't think statute or case law or anything else gives you a clear answer" on whether the law punishes women or just people helping them with an abortion, said Mary Ziegler, a law professor and expert on abortion law at University of California, Davis.

The law "doesn’t rule out women being prosecuted, even if it doesn't explicitly say they will or won't be," Ziegler said.

The phrases "any person" and "actively participates" would leave the matter open for any local law enforcement's discretion, Georgetown law professor Michele Bratcher Goodwin said.

DeSantis in a September CBS News interview said the penalties in the 2023 law are for the medical practitioners, not the pregnant women, his campaign told PolitiFact.

Nationwide, some Republican lawmakers have supported bills that punish women with prison time for abortions, but this is not a widely embraced idea throughout the anti-abortion movement.

State court in 1997 said women can’t be criminally liable for abortions

DeSantis’ office told PolitiFact that when DeSantis says the penalties won’t apply to women, he’s referring to a 1997 Florida Supreme Court case, State v. Ashley, about a pregnant teenager who shot herself, leading to her baby’s death 15 days later.

Authorities charged the teen with murder, but the court said she shouldn’t have been charged, because state law did not criminalize her conduct. The court cited past rulings that said women who had abortions were the "victim," not the offender.

DeSantis spokesperson Jeremy Redfern said that the "Florida Supreme Court precedent has affirmed the longstanding common law doctrine preventing a pregnant woman from being held criminally liable for receiving an abortion."

But law professors say we can’t conclude that the current Florida Supreme Court will take the same stance from decades ago, given nationwide changes in abortion law.

In 2022, the U.S. Supreme Court overturned Roe v. Wade, which protected abortion access federally. The Florida Supreme Court could soon rule in favor of the 15-week limit, which would contradict earlier rulings that protected abortion rights. DeSantis appointed five of the seven justices.

"If the current Florida Supreme Court is willing to overrule precedent on whether the Florida Constitution protects the right to abortion, it may be willing to overrule precedent on whether ambiguous abortion bans cover the pregnant person as well," said Caroline Mala Corbin, a University of Miami School of Law professor.

What we are left with here is "a lot of TBD," said Ziegler.

Our ruling

Newsom claimed that in Florida, "any woman who has an abortion after six weeks — and any doctor who gives her care — will be guilty of a felony."

DeSantis signed a bill banning most abortions after six weeks of pregnancy. The 2023 law says that anyone who "actively participates in" an abortion commits a third-degree felony.

The law penalizes physicians. The question is whether it would allow for criminalizing women for their abortions. The ad makes it sound like that is settled. It’s not.

Legal experts say the law’s vague language opens the door to prosecutors charging women, but we don’t yet know whether they will and how courts would respond to such charges. The law is on hold amid legal challenges.

Also, DeSantis has said that he doesn’t want women prosecuted, only the doctors.

The statement is partially accurate but leaves out important details. We rate it Half True.

Copyright 2023 WLRN 91.3 FM. To see more, visit WLRN 91.3 FM.

Amy Sherman | PolitiFact
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