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2019 Florida Statutes
Chapter 390
TERMINATION OF PREGNANCIES
TERMINATION OF PREGNANCIES
CHAPTER 390
TERMINATION OF PREGNANCIES
390.011 Definitions.
390.0111 Termination of pregnancies.
390.01112 Termination of pregnancies during viability.
390.01114 Parental Notice of Abortion Act.
390.01116 Public records exemptions; minors seeking waiver of notice requirements.
390.0112 Termination of pregnancies; reporting.
390.012 Powers of agency; rules; disposal of fetal remains.
390.014 Licenses; fees.
390.015 Application for license.
390.018 Administrative fine.
390.025 Abortion referral or counseling agencies; penalties.
390.011 Definitions.—As used in this chapter, the term:
(1) “Abortion” means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus.
(2) “Abortion clinic” or “clinic” means any facility in which abortions are performed. The term does not include:
(a) A hospital; or
(b) A physician’s office, provided that the office is not used primarily for the performance of abortions.
(3) “Agency” means the Agency for Health Care Administration.
(4) “Born alive” means the complete expulsion or extraction from the mother of a human infant, at any stage of development, who, after such expulsion or extraction, breathes or has a beating heart, or definite and voluntary movement of muscles, regardless of whether the umbilical cord has been cut and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, caesarean section, induced abortion, or other method.
(5) “Department” means the Department of Health.
(6) “Gestation” means the development of a human embryo or fetus between fertilization and birth.
(7) “Hospital” means a facility as defined in s. 395.002(12) and licensed under chapter 395 and part II of chapter 408.
(8) “Partial-birth abortion” means a termination of pregnancy in which the physician performing the termination of pregnancy partially vaginally delivers a living fetus before killing the fetus and completing the delivery.
(9) “Physician” means a physician licensed under chapter 458 or chapter 459 or a physician practicing medicine or osteopathic medicine in the employment of the United States.
1(10) “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
1(11) “Standard medical measure” means the medical care that a physician would provide based on the particular facts of the pregnancy, the information available to the physician, and the technology reasonably available in a hospital, as defined in s. 395.002, with an obstetrical department, to preserve the life and health of the fetus, with or without temporary artificial life-sustaining support, if the fetus were born at the same stage of fetal development.
(12) “ Trimester” means one of the following three distinct periods of time in the duration of a pregnancy:
(a) “First trimester,” which is the period of time from fertilization through the end of the 11th week of gestation.
(b) “Second trimester,” which is the period of time from the beginning of the 12th week of gestation through the end of the 23rd week of gestation.
(c) “Third trimester,” which is the period of time from the beginning of the 24th week of gestation through birth.
1(13) “Viable” or “viability” means the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.
History.—s. 1, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429; s. 4, ch. 97-151; s. 37, ch. 97-264; s. 3, ch. 98-1; s. 14, ch. 2007-230; s. 1, ch. 2013-121; s. 1, ch. 2014-137; s. 1, ch. 2016-150.
1Note.—Section 5, ch. 2014-137, provides that:
“Severability and reversion.—
“(1) If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
“(2) Notwithstanding subsection (1), if s. 390.01112, Florida Statutes, is held unconstitutional and severed by a court having jurisdiction, the amendments made by this act to s. 390.011, Florida Statutes, and subsections (4), (10), and (13) of s. 390.0111, Florida Statutes, will be repealed and will revert to the law as it existed on January 1, 2014.”
390.0111 Termination of pregnancies.—
(1) TERMINATION IN THIRD TRIMESTER; WHEN ALLOWED.—No termination of pregnancy shall be performed on any human being in the third trimester of pregnancy unless one of the following conditions is met:
(a) Two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition.
(b) The physician certifies in writing that, in reasonable medical judgment, there is a medical necessity for legitimate emergency medical procedures for termination of the pregnancy to save the pregnant woman’s life or avert a serious risk of imminent substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition, and another physician is not available for consultation.
(2) PERFORMANCE BY PHYSICIAN REQUIRED.—No termination of pregnancy shall be performed at any time except by a physician as defined in s. 390.011.
(3) CONSENTS REQUIRED.—A termination of pregnancy may not be performed or induced except with the voluntary and informed written consent of the pregnant woman or, in the case of a mental incompetent, the voluntary and informed written consent of her court-appointed guardian.
(a) Except in the case of a medical emergency, consent to a termination of pregnancy is voluntary and informed only if:
1. The physician who is to perform the procedure, or the referring physician, has, at a minimum, orally, while physically present in the same room, and at least 24 hours before the procedure, informed the woman of:
a. The nature and risks of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision of whether to terminate a pregnancy.
b. The probable gestational age of the fetus, verified by an ultrasound, at the time the termination of pregnancy is to be performed.
(I) The ultrasound must be performed by the physician who is to perform the abortion or by a person having documented evidence that he or she has completed a course in the operation of ultrasound equipment as prescribed by rule and who is working in conjunction with the physician.
(II) The person performing the ultrasound must offer the woman the opportunity to view the live ultrasound images and hear an explanation of them. If the woman accepts the opportunity to view the images and hear the explanation, a physician or a registered nurse, licensed practical nurse, advanced practice registered nurse, or physician assistant working in conjunction with the physician must contemporaneously review and explain the images to the woman before the woman gives informed consent to having an abortion procedure performed.
(III) The woman has a right to decline to view and hear the explanation of the live ultrasound images after she is informed of her right and offered an opportunity to view the images and hear the explanation. If the woman declines, the woman shall complete a form acknowledging that she was offered an opportunity to view and hear the explanation of the images but that she declined that opportunity. The form must also indicate that the woman’s decision was not based on any undue influence from any person to discourage her from viewing the images or hearing the explanation and that she declined of her own free will.
(IV) Unless requested by the woman, the person performing the ultrasound may not offer the opportunity to view the images and hear the explanation and the explanation may not be given if, at the time the woman schedules or arrives for her appointment to obtain an abortion, a copy of a restraining order, police report, medical record, or other court order or documentation is presented which provides evidence that the woman is obtaining the abortion because the woman is a victim of rape, incest, domestic violence, or human trafficking or that the woman has been diagnosed as having a condition that, on the basis of a physician’s good faith clinical judgment, would create a serious risk of substantial and irreversible impairment of a major bodily function if the woman delayed terminating her pregnancy.
c. The medical risks to the woman and fetus of carrying the pregnancy to term.
The physician may provide the information required in this subparagraph within 24 hours before the procedure if requested by the woman at the time she schedules or arrives for her appointment to obtain an abortion and if she presents to the physician a copy of a restraining order, police report, medical record, or other court order or documentation evidencing that she is obtaining the abortion because she is a victim of rape, incest, domestic violence, or human trafficking.
2. Printed materials prepared and provided by the department have been provided to the pregnant woman, if she chooses to view these materials, including:
a. A description of the fetus, including a description of the various stages of development.
b. A list of entities that offer alternatives to terminating the pregnancy.
c. Detailed information on the availability of medical assistance benefits for prenatal care, childbirth, and neonatal care.
3. The woman acknowledges in writing, before the termination of pregnancy, that the information required to be provided under this subsection has been provided.
Nothing in this paragraph is intended to prohibit a physician from providing any additional information which the physician deems material to the woman’s informed decision to terminate her pregnancy.
(b) If a medical emergency exists and a physician cannot comply with the requirements for informed consent, a physician may terminate a pregnancy if he or she has obtained at least one corroborative medical opinion attesting to the medical necessity for emergency medical procedures and to the fact that to a reasonable degree of medical certainty the continuation of the pregnancy would threaten the life of the pregnant woman. If a second physician is not available for a corroborating opinion, the physician may proceed but shall document reasons for the medical necessity in the patient’s medical records.
(c) Violation of this subsection by a physician constitutes grounds for disciplinary action under s. 458.331 or s. 459.015. Substantial compliance or 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.
1(4) STANDARD OF MEDICAL CARE TO BE USED IN THIRD TRIMESTER.—If a termination of pregnancy is performed in the third trimester, the physician performing the termination of pregnancy must exercise the same degree of professional skill, care, and diligence to preserve the life and health of the fetus which the physician would be required to exercise in order to preserve the life and health of a fetus intended to be born and not aborted. However, if preserving the life and health of the fetus conflicts with preserving the life and health of the pregnant woman, the physician must consider preserving the woman’s life and health the overriding and superior concern.
(5) PARTIAL-BIRTH ABORTION PROHIBITED; EXCEPTION.—
(a) No physician shall knowingly perform a partial-birth abortion.
(b) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section for a conspiracy to violate the provisions of this section.
(c) This subsection shall not apply to a partial-birth abortion that is 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.
(6) EXPERIMENTATION ON FETUS PROHIBITED; EXCEPTION.—No person shall use any live fetus or live, premature infant for any type of scientific, research, laboratory, or other kind of experimentation either prior to or subsequent to any termination of pregnancy procedure except as necessary to protect or preserve the life and health of such fetus or premature infant.
(7) FETAL REMAINS.—Fetal remains shall be disposed of in a sanitary manner pursuant to s. 381.0098 and rules adopted thereunder. Failure to dispose of fetal remains in accordance with this subsection is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(8) REFUSAL TO PARTICIPATE IN TERMINATION PROCEDURE.—Nothing in this section shall require any hospital or any person to participate in the termination of a pregnancy, nor shall any hospital or any person be liable for such refusal. No person who is a member of, or associated with, the staff of a hospital, nor any employee of a hospital or physician in which or by whom the termination of a pregnancy has been authorized or performed, who shall state an objection to such procedure on moral or religious grounds shall be required to participate in the procedure which will result in the termination of pregnancy. The refusal of any such person or employee to participate shall not form the basis for any disciplinary or other recriminatory action against such person.
(9) EXCEPTION.—The provisions of this section shall not apply to the performance of a procedure which terminates a pregnancy in order to deliver a live child.
1(10) PENALTIES FOR VIOLATION.—Except as provided in subsections (3), (7), and (12):
(a) Any person who willfully performs, or actively participates in, a termination of pregnancy in violation of the requirements of this section or s. 390.01112 commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Any person who performs, or actively participates in, a termination of pregnancy in violation of this section or s. 390.01112 which results in the death of the woman commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(11) CIVIL ACTION PURSUANT TO PARTIAL-BIRTH ABORTION; RELIEF.—
(a) The father, if married to the mother at the time she receives a partial-birth abortion, and, if the mother has not attained the age of 18 years at the time she receives a partial-birth abortion, the maternal grandparents of the fetus may, in a civil action, obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.
(b) In a civil action under this section, appropriate relief includes:
1. Monetary damages for all injuries, psychological and physical, occasioned by the violation of subsection (5).
2. Damages equal to three times the cost of the partial-birth abortion.
(12) INFANTS BORN ALIVE.—
(a) An infant born alive during or immediately after an attempted abortion is entitled to the same rights, powers, and privileges as are granted by the laws of this state to any other child born alive in the course of natural birth.
(b) If an infant is born alive during or immediately after an attempted abortion, any health care practitioner present at the time shall humanely exercise the same degree of professional skill, care, and diligence to preserve the life and health of the infant as a reasonably diligent and conscientious health care practitioner would render to an infant born alive at the same gestational age in the course of natural birth.
(c) An infant born alive during or immediately after an attempted abortion must be immediately transported and admitted to a hospital pursuant to s. 390.012(3)(c) or rules adopted thereunder.
(d) A health care practitioner or any employee of a hospital, a physician’s office, or an abortion clinic who has knowledge of a violation of this subsection must report the violation to the department.
(e) A person who violates this subsection commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This subsection shall not be construed as a specific provision of law relating to a particular subject matter that would preclude prosecution of a more general offense, regardless of the penalty.
(f) This subsection does not affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species Homo sapiens at any point prior to being born alive as defined in s. 390.011.
1(13) FAILURE TO COMPLY.—Failure to comply with the requirements of this section or s. 390.01112 constitutes grounds for disciplinary action under each respective practice act and under s. 456.072.
(14) RULES.—The applicable boards, or the department if there is no board, shall adopt rules necessary to implement the provisions of this section.
(15) USE OF PUBLIC FUNDS RESTRICTED.—A state agency, a local governmental entity, or a managed care plan providing services under part IV of chapter 409 may not expend funds for the benefit of, pay funds to, or initiate or renew a contract with an organization that owns, operates, or is affiliated with one or more clinics that are licensed under this chapter and perform abortions unless one or more of the following applies:
(a) All abortions performed by such clinics are:
1. On fetuses that are conceived through rape or incest; or
2. Are medically necessary to preserve the life of the pregnant woman or to avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman, other than a psychological condition.
(b) The funds must be expended to fulfill the terms of a contract entered into before July 1, 2016.
(c) The funds must be expended as reimbursement for Medicaid services provided on a fee-for-service basis.
History.—s. 1, ch. 79-302; s. 1, ch. 80-208; s. 6, ch. 88-97; s. 6, ch. 91-223; s. 64, ch. 91-224; s. 694, ch. 95-148; s. 2, ch. 97-151; s. 1, ch. 98-1; s. 201, ch. 99-13; s. 1, ch. 2011-224; s. 2, ch. 2013-121; s. 2, ch. 2014-137; s. 1, ch. 2015-118; s. 2, ch. 2016-150; s. 20, ch. 2018-106.
1Note.—Section 5, ch. 2014-137, provides that:
“Severability and reversion.—
“(1) If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
“(2) Notwithstanding subsection (1), if s. 390.01112, Florida Statutes, is held unconstitutional and severed by a court having jurisdiction, the amendments made by this act to s. 390.011, Florida Statutes, and subsections (4), (10), and (13) of s. 390.0111, Florida Statutes, will be repealed and will revert to the law as it existed on January 1, 2014.”
Note.—Former s. 390.001.
1390.01112 Termination of pregnancies during viability.—
(1) No termination of pregnancy shall be performed on any human being if the physician determines that, in reasonable medical judgment, the fetus has achieved viability, unless:
(a) Two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition; or
(b) The physician certifies in writing that, in reasonable medical judgment, there is a medical necessity for legitimate emergency medical procedures for termination of the pregnancy to save the pregnant woman’s life or avert a serious risk of imminent substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition, and another physician is not available for consultation.
(2) Before performing a termination of pregnancy, a physician must determine if the fetus is viable by, at a minimum, performing a medical examination of the pregnant woman and, to the maximum extent possible through reasonably available tests and the ultrasound required under s. 390.0111(3), an examination of the fetus. The physician must document in the pregnant woman’s medical file the physician’s determination and the method, equipment, fetal measurements, and any other information used to determine the viability of the fetus.
(3) If a termination of pregnancy is performed during viability, the physician performing the termination of pregnancy must exercise the same degree of professional skill, care, and diligence to preserve the life and health of the fetus that the physician would be required to exercise in order to preserve the life and health of a fetus intended to be born and not aborted. However, if preserving the life and health of the fetus conflicts with preserving the life and health of the woman, the physician must consider preserving the woman’s life and health the overriding and superior concern.
History.—s. 3, ch. 2014-137.
1Note.—Section 5, ch. 2014-137, provides that:
“Severability and reversion.—
“(1) If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
“(2) Notwithstanding subsection (1), if s. 390.01112, Florida Statutes, is held unconstitutional and severed by a court having jurisdiction, the amendments made by this act to s. 390.011, Florida Statutes, and subsections (4), (10), and (13) of s. 390.0111, Florida Statutes, will be repealed and will revert to the law as it existed on January 1, 2014.”
390.01114 Parental Notice of Abortion Act.—
(1) SHORT TITLE.—This section may be cited as the “Parental Notice of Abortion Act.”
(2) DEFINITIONS.—As used in this section, the term:
(a) “Actual notice” means notice that is given directly, in person or by telephone, to a parent or legal guardian of a minor, by a physician, at least 48 hours before the inducement or performance of a termination of pregnancy, and documented in the minor’s files.
(b) “Child abuse” means abandonment, abuse, harm, mental injury, neglect, physical injury, or sexual abuse of a child as those terms are defined in ss. 39.01, 827.04, and 984.03.
(c) “Constructive notice” means notice that is given in writing, signed by the physician, and mailed at least 72 hours before the inducement or performance of the termination of pregnancy, to the last known address of the parent or legal guardian of the minor, by first-class mail and by certified mail, return receipt requested, and delivery restricted to the parent or legal guardian. After the 72 hours have passed, delivery is deemed to have occurred.
(d) “Medical emergency” means a condition that, on the basis of a physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate termination of her pregnancy to avert her death, or for which a delay in the termination of her pregnancy will create serious risk of substantial and irreversible impairment of a major bodily function.
(e) “Sexual abuse” has the meaning ascribed in s. 39.01.
(f) “Minor” means a person under the age of 18 years.
(3) NOTIFICATION REQUIRED.—
(a) Actual notice shall be provided by the physician performing or inducing the termination of pregnancy before the performance or inducement of the termination of the pregnancy of a minor. The notice may be given by a referring physician. The physician who performs or induces the termination of pregnancy must receive the written statement of the referring physician certifying that the referring physician has given notice. If actual notice is not possible after a reasonable effort has been made, the physician performing or inducing the termination of pregnancy or the referring physician must give constructive notice. Notice given under this subsection by the physician performing or inducing the termination of pregnancy must include the name and address of the facility providing the termination of pregnancy and the name of the physician providing notice. Notice given under this subsection by a referring physician must include the name and address of the facility where he or she is referring the minor and the name of the physician providing notice. If actual notice is provided by telephone, the physician must actually speak with the parent or guardian, and must record in the minor’s medical file the name of the parent or guardian provided notice, the phone number dialed, and the date and time of the call. If constructive notice is given, the physician must document that notice by placing copies of any document related to the constructive notice, including, but not limited to, a copy of the letter and the return receipt, in the minor’s medical file. Actual notice given by telephone shall be confirmed in writing, signed by the physician, and mailed to the last known address of the parent or legal guardian of the minor, by first-class mail and by certified mail, return receipt requested, with delivery restricted to the parent or legal guardian.
(b) Notice is not required if:
1. In the physician’s good faith clinical judgment, a medical emergency exists and there is insufficient time for the attending physician to comply with the notification requirements. If a medical emergency exists, the physician shall make reasonable attempts, whenever possible, without endangering the minor, to contact the parent or legal guardian, and may proceed, but must document reasons for the medical necessity in the patient’s medical records. The physician shall provide notice directly, in person or by telephone, to the parent or legal guardian, including details of the medical emergency and any additional risks to the minor. If the parent or legal guardian has not been notified within 24 hours after the termination of the pregnancy, the physician shall provide notice in writing, including details of the medical emergency and any additional risks to the minor, signed by the physician, to the last known address of the parent or legal guardian of the minor, by first-class mail and by certified mail, return receipt requested, with delivery restricted to the parent or legal guardian;
2. Notice is waived in writing by the person who is entitled to notice and such waiver is notarized, dated not more than 30 days before the termination of pregnancy, and contains a specific waiver of the right of the parent or legal guardian to notice of the minor’s termination of pregnancy;
3. Notice is waived by the minor who is or has been married or has had the disability of nonage removed under s. 743.015 or a similar statute of another state;
4. Notice is waived by the patient because the patient has a minor child dependent on her; or
5. Notice is waived under subsection (4).
(c) Violation of this subsection by a physician constitutes grounds for disciplinary action under s. 458.331 or s. 459.015.
(4) PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.—
(a) A minor may petition any circuit court in which the minor resides for a waiver of the notice requirements of subsection (3) and may participate in proceedings on her own behalf. The petition may be filed under a pseudonym or through the use of initials, as provided by court rule. The petition must include a statement that the petitioner is pregnant and notice has not been waived. The court shall advise the minor that she has a right to court-appointed counsel and shall provide her with counsel upon her request at no cost to the minor.
(b)1. Court proceedings under this subsection must be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly. The court shall rule, and issue written findings of fact and conclusions of law, within 3 business days after the petition is filed, except that the 3-business-day limitation may be extended at the request of the minor. If the court fails to rule within the 3-business-day period and an extension has not been requested, the minor may immediately petition for a hearing upon the expiration of the 3-business-day period to the chief judge of the circuit, who must ensure a hearing is held within 48 hours after receipt of the minor’s petition and an order is entered within 24 hours after the hearing.
2. If the circuit court does not grant judicial waiver of notice, the minor has the right to appeal. An appellate court must rule within 7 days after receipt of appeal, but a ruling may be remanded with further instruction for a ruling within 3 business days after the remand. The reason for overturning a ruling on appeal must be based on abuse of discretion by the court and may not be based on the weight of the evidence presented to the circuit court since the proceeding is a nonadversarial proceeding.
(c) If the court finds, by clear and convincing evidence, that the minor is sufficiently mature to decide whether to terminate her pregnancy, the court shall issue an order authorizing the minor to consent to the performance or inducement of a termination of pregnancy without the notification of a parent or guardian. If the court does not make the finding specified in this paragraph or paragraph (d), it must dismiss the petition. Factors the court shall consider include:
1. The minor’s:
a. Age.
b. Overall intelligence.
c. Emotional development and stability.
d. Credibility and demeanor as a witness.
e. Ability to accept responsibility.
f. Ability to assess both the immediate and long-range consequences of the minor’s choices.
g. Ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision.
2. Whether there may be any undue influence by another on the minor’s decision to have an abortion.
(d) If the court finds, by a preponderance of the evidence, that the petitioner is the victim of child abuse or sexual abuse inflicted by one or both of her parents or her guardian, or by clear and convincing evidence that the notification of a parent or guardian is not in the best interest of the petitioner, the court shall issue an order authorizing the minor to consent to the performance or inducement of a termination of pregnancy without the notification of a parent or guardian. The best-interest standard does not include financial best interest or financial considerations or the potential financial impact on the minor or the minor’s family if the minor does not terminate the pregnancy. If the court finds evidence of child abuse or sexual abuse of the minor petitioner by any person, the court shall report the evidence of child abuse or sexual abuse of the petitioner, as provided in s. 39.201. If the court does not make the finding specified in this paragraph or paragraph (c), it must dismiss the petition.
(e) A court that conducts proceedings under this section shall:
1. Provide for a written transcript of all testimony and proceedings;
2. Issue a final written order containing factual findings and legal conclusions supporting its decision, including factual findings and legal conclusions relating to the maturity of the minor as provided under paragraph (c); and
3. Order that a confidential record be maintained, as required under s. 390.01116.
(f) All hearings under this section, including appeals, shall remain confidential and closed to the public, as provided by court rule.
(g) An expedited appeal shall be made available, as the Supreme Court provides by rule, to any minor to whom the circuit court denies a waiver of notice. An order authorizing a termination of pregnancy without notice is not subject to appeal.
(h) Filing fees or court costs may not be required of any pregnant minor who petitions a court for a waiver of parental notification under this subsection at either the trial or the appellate level.
(i) A county is not obligated to pay the salaries, costs, or expenses of any counsel appointed by the court under this subsection.
(5) PROCEEDINGS.—The Supreme Court is requested to adopt rules and forms for petitions to ensure that proceedings under subsection (4) are handled expeditiously and in a manner consistent with this act. The Supreme Court is also requested to adopt rules to ensure that the hearings protect the minor’s confidentiality and the confidentiality of the proceedings.
(6) REPORT.—The Supreme Court, through the Office of the State Courts Administrator, shall report by February 1 of each year to the Governor, the President of the Senate, and the Speaker of the House of Representatives on the number of petitions filed under subsection (4) for the preceding year, and the timing and manner of disposal of such petitions by each circuit court. For each petition resulting in a waiver of notice, the reason for the waiver shall be included in the report.
History.—s. 2, ch. 2005-52; s. 43, ch. 2006-1; s. 47, ch. 2011-213; s. 1, ch. 2011-227.
390.01116 Public records exemptions; minors seeking waiver of notice requirements.—Any information that can be used to identify a minor petitioning a circuit court for a judicial waiver, as provided in s. 390.01114, of the notice requirements under the Parental Notice of Abortion Act is:
(1) Confidential and exempt from s. 24(a), Art. I of the State Constitution if held by a circuit court or an appellate court.
(2) Confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution if held by the office of criminal conflict and civil regional counsel or the Justice Administrative Commission.
History.—s. 1, ch. 99-321; ss. 1, 2, ch. 2005-104; ss. 1, 3, ch. 2010-41; s. 1, ch. 2015-74.
390.0112 Termination of pregnancies; reporting.—
(1) The director of any medical facility in which abortions are performed, including a physician’s office, shall submit a report each month to the agency. The report may be submitted electronically, may not include personal identifying information, and must include:
(a) Until the agency begins collecting data under paragraph (e), the number of abortions performed.
(b) The reasons such abortions were performed.
(c) For each abortion, the period of gestation at the time the abortion was performed.
(d) The number of infants born alive or alive immediately after an attempted abortion.
(e) Beginning no later than January 1, 2017, information consistent with the United States Standard Report of Induced Termination of Pregnancy adopted by the Centers for Disease Control and Prevention.
(2) The agency shall keep such reports in a central location for the purpose of compiling and analyzing statistical data and shall submit data reported pursuant to paragraph (1)(e) to the Division of Reproductive Health within the Centers for Disease Control and Prevention, as requested by the Centers for Disease Control and Prevention.
(3) If the termination of pregnancy is not performed in a medical facility, the physician performing the procedure shall be responsible for reporting such information as required in subsection (1).
(4) Reports submitted pursuant to this section shall be confidential and exempt from the provisions of s. 119.07(1) and shall not be revealed except upon the order of a court of competent jurisdiction in a civil or criminal proceeding.
(5) Any person required under this section to file a report or keep any records who willfully fails to file such report or keep such records may be subject to a $200 fine for each violation. The agency shall be required to impose such fines when reports or records required under this section have not been timely received. For purposes of this section, timely received is defined as 30 days following the preceding month.
History.—s. 2, ch. 79-302; s. 1, ch. 90-336; s. 191, ch. 97-101; s. 3, ch. 97-151; s. 2, ch. 98-1; s. 78, ch. 99-8; s. 202, ch. 99-13; s. 3, ch. 2013-121; s. 3, ch. 2016-150.
Note.—Former s. 390.002.
390.012 Powers of agency; rules; disposal of fetal remains.—
(1) The agency may develop and enforce rules pursuant to ss. 390.011-390.018 and part II of chapter 408 for the health, care, and treatment of persons in abortion clinics and for the safe operation of such clinics.
(a) The rules shall be reasonably related to the preservation of maternal health of the clients.
(b) The rules shall be in accordance with s. 797.03 and may not impose an unconstitutional burden on a woman’s freedom to decide whether to terminate her pregnancy.
(c) The rules shall provide for:
1. The performance of pregnancy termination procedures only by a licensed physician.
2. The making, protection, and preservation of patient records, which shall be treated as medical records under chapter 458. When performing a license inspection of a clinic, the agency shall inspect at least 50 percent of patient records generated since the clinic’s last license inspection.
3. Annual inspections by the agency of all clinics licensed under this chapter to ensure that such clinics are in compliance with this chapter and agency rules.
4. The prompt investigation of credible allegations of abortions being performed at a clinic that is not licensed to perform such procedures.
(2) For clinics that perform abortions in the first trimester of pregnancy only, these rules must be comparable to rules that apply to all surgical procedures requiring approximately the same degree of skill and care as the performance of first trimester abortions and must require:
(a) Clinics to have a written patient transfer agreement with a hospital within reasonable proximity to the clinic which includes the transfer of the patient’s medical records held by the clinic and the treating physician to the licensed hospital; or
(b) Physicians who perform abortions at the clinic to have admitting privileges at a hospital within reasonable proximity to the clinic.
(3) For clinics that perform or claim to perform abortions after the first trimester of pregnancy, the agency shall adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter, including the following:
(a) Rules for an abortion clinic’s physical facilities. At a minimum, these rules shall prescribe standards for:
1. Adequate private space that is specifically designated for interviewing, counseling, and medical evaluations.
2. Dressing rooms for staff and patients.
3. Appropriate lavatory areas.
4. Areas for preprocedure hand washing.
5. Private procedure rooms.
6. Adequate lighting and ventilation for abortion procedures.
7. Surgical or gynecological examination tables and other fixed equipment.
8. Postprocedure recovery rooms that are equipped to meet the patients’ needs.
9. Emergency exits to accommodate a stretcher or gurney.
10. Areas for cleaning and sterilizing instruments.
11. Adequate areas for the secure storage of medical records and necessary equipment and supplies.
12. The display in the abortion clinic, in a place that is conspicuous to all patients, of the clinic’s current license issued by the agency.
(b) Rules to prescribe abortion clinic supplies and equipment standards, including supplies and equipment that are required to be immediately available for use or in an emergency. At a minimum, these rules shall:
1. Prescribe required clean and sterilized equipment and supplies, including medications, required for the conduct, in an appropriate fashion, of any abortion procedure that the medical staff of the clinic anticipates performing and for monitoring the progress of each patient throughout the procedure and recovery period.
2. Prescribe required equipment, supplies, and medications that shall be available and ready for immediate use in an emergency and requirements for written protocols and procedures to be followed by staff in an emergency, such as the loss of electrical power.
3. Prescribe equipment and supplies for required laboratory tests and requirements for protocols to calibrate and maintain laboratory equipment or equipment operated by clinic staff at the abortion clinic.
4. Require ultrasound equipment.
5. Require that all equipment is safe for the patient and the staff, meets applicable federal standards, and is checked annually to ensure safety and appropriate calibration.
(c) Rules relating to abortion clinic personnel. At a minimum, these rules shall require that:
1. The abortion clinic designate a medical director who is licensed to practice medicine in this state, and all physicians who perform abortions in the clinic have admitting privileges at a hospital within reasonable proximity to the clinic, unless the clinic has a written patient transfer agreement with a hospital within reasonable proximity to the clinic which includes the transfer of the patient’s medical records held by both the clinic and the treating physician.
2. If a physician is not present after an abortion is performed, a registered nurse, licensed practical nurse, advanced practice registered nurse, or physician assistant be present and remain at the clinic to provide postoperative monitoring and care until the patient is discharged.
3. Surgical assistants receive training in counseling, patient advocacy, and the specific responsibilities associated with the services the surgical assistants provide.
4. Volunteers receive training in the specific responsibilities associated with the services the volunteers provide, including counseling and patient advocacy as provided in the rules adopted by the director for different types of volunteers based on their responsibilities.
(d) Rules relating to the medical screening and evaluation of each abortion clinic patient. At a minimum, these rules shall require:
1. A medical history including reported allergies to medications, antiseptic solutions, or latex; past surgeries; and an obstetric and gynecological history.
2. A physical examination, including a bimanual examination estimating uterine size and palpation of the adnexa.
3. The appropriate laboratory tests, including:
a. Urine or blood tests for pregnancy performed before the abortion procedure.
b. A test for anemia.
c. Rh typing, unless reliable written documentation of blood type is available.
d. Other tests as indicated from the physical examination.
4. An ultrasound evaluation for all patients. The rules shall require that if a person who is not a physician performs an ultrasound examination, that person shall have documented evidence that he or she has completed a course in the operation of ultrasound equipment as prescribed in rule. The rules shall require clinics to be in compliance with s. 390.0111.
5. That the physician is responsible for estimating the gestational age of the fetus based on the ultrasound examination and obstetric standards in keeping with established standards of care regarding the estimation of fetal age as defined in rule and shall write the estimate in the patient’s medical history. The physician shall keep original prints of each ultrasound examination of a patient in the patient’s medical history file.
(e) Rules relating to the abortion procedure. At a minimum, these rules shall require:
1. That a physician, registered nurse, licensed practical nurse, advanced practice registered nurse, or physician assistant is available to all patients throughout the abortion procedure.
2. Standards for the safe conduct of abortion procedures that conform to obstetric standards in keeping with established standards of care regarding the estimation of fetal age as defined in rule.
3. Appropriate use of general and local anesthesia, analgesia, and sedation if ordered by the physician.
4. Appropriate precautions, such as the establishment of intravenous access at least for patients undergoing post-first trimester abortions.
5. Appropriate monitoring of the vital signs and other defined signs and markers of the patient’s status throughout the abortion procedure and during the recovery period until the patient’s condition is deemed to be stable in the recovery room.
(f) Rules that prescribe minimum recovery room standards. At a minimum, these rules must require that:
1. Postprocedure recovery rooms be supervised and staffed to meet the patients’ needs.
2. Immediate postprocedure care consist of observation in a supervised recovery room for as long as the patient’s condition warrants.
3. A registered nurse, licensed practical nurse, advanced practice registered nurse, or physician assistant who is trained in the management of the recovery area and is capable of providing basic cardiopulmonary resuscitation and related emergency procedures remain on the premises of the abortion clinic until all patients are discharged.
4. A physician sign the discharge order and be readily accessible and available until the last patient is discharged to facilitate the transfer of emergency cases if hospitalization of the patient or viable fetus is necessary.
5. A physician discuss Rho(D) immune globulin with each patient for whom it is indicated and ensure that it is offered to the patient in the immediate postoperative period or will be available to her within 72 hours after completion of the abortion procedure. If the patient refuses the Rho(D) immune globulin, she and a witness must sign a refusal form approved by the agency which must be included in the medical record.
6. Written instructions with regard to postabortion coitus, signs of possible problems, and general aftercare which are specific to the patient be given to each patient. The instructions must include information regarding access to medical care for complications, including a telephone number for use in the event of a medical emergency.
7. A minimum length of time be specified, by type of abortion procedure and duration of gestation, during which a patient must remain in the recovery room.
8. The physician ensure that, with the patient’s consent, a registered nurse, licensed practical nurse, advanced practice registered nurse, or physician assistant from the abortion clinic makes a good faith effort to contact the patient by telephone within 24 hours after surgery to assess the patient’s recovery.
9. Equipment and services be readily accessible to provide appropriate emergency resuscitative and life support procedures pending the transfer of the patient or viable fetus to the hospital.
(g) Rules that prescribe standards for followup care. At a minimum, these rules shall require that:
1. A postabortion medical visit that includes a medical examination and a review of the results of all laboratory tests is offered.
2. A urine pregnancy test is obtained at the time of the followup visit to rule out continuing pregnancy.
3. If a continuing pregnancy is suspected, the patient shall be evaluated and a physician who performs abortions shall be consulted.
(h) Rules to prescribe minimum abortion clinic incident reporting. At a minimum, these rules shall require that:
1. The abortion clinic records each incident that results in serious injury to a patient or a viable fetus at an abortion clinic and shall report an incident in writing to the agency within 10 days after the incident occurs. For the purposes of this paragraph, “serious injury” means an injury that occurs at an abortion clinic and that creates a serious risk of substantial impairment of a major bodily organ.
2. If a patient’s death occurs, other than a fetal death properly reported pursuant to law, the abortion clinic reports it to the department not later than the next department workday.
(4) The rules adopted pursuant to this section shall not limit the ability of a physician to advise a patient on any health issue.
(5) The provisions of this section and the rules adopted pursuant hereto shall be in addition to any other laws, rules, and regulations which are applicable to facilities defined as abortion clinics under this section.
(6) The agency may adopt and enforce rules, in the interest of protecting the public health, to ensure the prompt and proper disposal of fetal remains and tissue resulting from pregnancy termination.
(7) If an owner, operator, or employee of an abortion clinic fails to dispose of fetal remains and tissue in a sanitary manner pursuant to s. 381.0098, rules adopted thereunder, and rules adopted by the agency pursuant to this section, the license of such clinic may be suspended or revoked, and such person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(8) Beginning February 1, 2017, and annually thereafter, the agency shall submit a report to the President of the Senate and the Speaker of the House of Representatives which summarizes all regulatory actions taken during the prior year by the agency under this chapter.
History.—s. 2, ch. 78-382; s. 1, ch. 80-413; s. 1, ch. 86-286; ss. 1, 4, 5, ch. 88-97; s. 65, ch. 91-224; s. 4, ch. 91-429; s. 5, ch. 97-151; s. 2, ch. 2005-95; s. 15, ch. 2007-230; s. 96, ch. 2008-4; s. 2, ch. 2011-224; s. 2, ch. 2015-118; s. 4, ch. 2016-150; s. 21, ch. 2018-106.
390.014 Licenses; fees.—
(1) The requirements of part II of chapter 408 shall apply to the provision of services that require licensure pursuant to ss. 390.011-390.018 and part II of chapter 408 and to entities licensed by or applying for such licensure from the Agency for Health Care Administration pursuant to ss. 390.011-390.018. A license issued by the agency is required in order to operate a clinic in this state.
(2) A separate license shall be required for each clinic maintained on separate premises, even though it is operated by the same management as another clinic; but a separate license shall not be required for separate buildings on the same premises.
(3) In accordance with s. 408.805, an applicant or licensee shall pay a fee for each license application submitted under this chapter and part II of chapter 408. The amount of the fee shall be established by rule and may not be more than required to pay for the costs incurred by the agency in administering this chapter.
(4) Counties and municipalities applying for licenses under this act shall be exempt from the payment of the license fees.
History.—s. 4, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 5, ch. 91-282; s. 4, ch. 91-429; s. 6, ch. 97-151; s. 17, ch. 2007-230; s. 97, ch. 2008-4; s. 5, ch. 2016-150.
390.015 Application for license.—In addition to the requirements of part II of chapter 408, an application for a license to operate an abortion clinic shall be made to the agency and must include the location of the clinic for which application is made and a statement that local zoning ordinances permit such location.
History.—s. 5, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429; s. 7, ch. 97-151; ss. 21, 71, ch. 98-171; s. 61, ch. 2000-349; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 41, ch. 2004-267; s. 18, ch. 2007-230.
390.018 Administrative fine.—In addition to the requirements of part II of chapter 408, the agency may impose a fine upon the clinic in an amount not to exceed $1,000 for each violation of any provision of this chapter, part II of chapter 408, or applicable rules.
History.—s. 8, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429; s. 10, ch. 97-151; s. 21, ch. 2007-230; s. 98, ch. 2008-4.
390.025 Abortion referral or counseling agencies; penalties.—
(1) As used in this section, an “abortion referral or counseling agency” is any person, group, or organization, whether funded publicly or privately, that provides advice or help to persons in obtaining abortions.
(2) An abortion referral or counseling agency, before making a referral or aiding a person in obtaining an abortion, shall furnish such person with a full and detailed explanation of abortion, including the effects of and alternatives to abortion. If the person advised is a minor, a good faith effort shall be made by the referral or counseling agency to furnish such information to the parents or guardian of the minor. No abortion referral or counseling agency shall charge or accept any fee, kickback, or compensation of any nature from a physician, hospital, clinic, or other medical facility for referring a person thereto for an abortion.
(3) An abortion referral or counseling agency, as defined in subsection (1), shall register with the Agency for Health Care Administration. To register or renew a registration an applicant must pay an initial or renewal registration fee established by rule, which must not exceed the costs incurred by the agency in administering this section. Registrants must include in any advertising materials the registration number issued by the agency and must renew their registration biennially.
(4) The following are exempt from the requirement to register pursuant to subsection (3):
(a) Facilities licensed pursuant to this chapter, chapter 395, chapter 400, or chapter 408;
(b) Facilities that are exempt from licensure as a clinic under s. 400.9905(4) and that refer five or fewer patients for abortions per month; and
(c) Health care practitioners, as defined in s. 456.001, who, in the course of their practice outside of a facility licensed pursuant to this chapter, chapter 395, chapter 400, or chapter 408, refer five or fewer patients for abortions each month.
(5) The agency shall adopt rules to administer this section and part II of chapter 408.
(6) Any person who violates the provisions of subsection (2) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. In addition to any other penalties imposed pursuant to this chapter, the Agency for Health Care Administration may assess costs related to an investigation of violations of this section which results in a successful prosecution. Such costs may not include attorney fees.
History.—s. 1, ch. 79-302; s. 66, ch. 91-224; s. 6, ch. 2016-150.