Analysis of Amendment 4 - Part 2: Doctors Replaced by 'Health Care Providers.' Science Overruled.

The language in the amendment isn’t defined and only the courts will have jurisdiction as to what it actually means.

The main issue concerning Amendment 4 is that legal language has changed surrounding the medical process for the elective procedure. Pro-choice advocates have been saying for years in defense of Roe v. Wade, “This decision is between a woman and her doctor.”

In the proposed Amendment 4, a doctor is never mentioned. The term has been removed for ‘health care provider,’ a nondescript phrase. In Florida statutes, there is the term, ‘health care practitioner.’ Under Florida statute 456.001, health care practitioners can mean one of 59 different professionals defined in law. Obviously, physicians, or ‘doctor’ is classified. Yet, so is a dental assistant, or a massage therapist. In the case of children, a school psychologist is considered a ‘health care practitioner.’ 

Senator Erin Grall has spent more time campaigning against Amendment 4 than running her own personal campaign to retain her senate seat. Senator Grall is the author of the 6-week bill and helped define many of the terms in Florida law regarding abortion.  She told a story about a question she received in Stuart on Amendment 4. She said,  “I had a great question from a school nurse. She asked, ‘Would I be required to give the abortion pill if this law passed?’ I couldn't tell her ‘no,’ that she wouldn't be, because - would she have to give notification to the minor girl's parents? Yes, she'd have to give notification after she has dispensed the pill. She qualifies as a healthcare practitioner under our current statutes.”

As a constitutional mandate, Amendment 4’s language is clear on how you cannot slow the process of getting an abortion. The amendment begins with the statement, “No law shall prohibit, penalize, delay or restrict abortion before viability…”

The nurse will have to adhere to it as the ‘health care practitioner’ if presented with a case outlined in the question. A constitutional amendment makes it the girl’s right to the procedure and it cannot be legally delayed or denied. The current 48-hour notice with the required written consent by a parent or legal guardian to be presented to an actual physician is removed by this amendment’s passage. As written, notifying the parent(s) is still required as long as it does not delay the procedure once a decision is made. 

Amendment 4 would also override Title 48 of Florida Law, The Parental Bill of Rights. A parent taking control of the medical decision regarding their daughter’s abortion would be a restriction against Amendment 4. The legislature cannot put back the parameters currently established in Title 48. Senator Grall said, “The hierarchy of laws is very important because the other side regularly says, ‘No, no, no, the legislature can define these words later. It doesn't all have to be in the Constitution.’ And that's just not factual at all.”

The “other side” behind Amendment 4 is the American Civil Liberties Union and Planned Parenthood. They strategically wrote the broad undefined amendment language with purpose. Other undefined and broad terminology is used to expand abortion access. As Amendment 4 states 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.”

Is viability determined by time or scientific advancements?

Currently, viability in Florida statute, “means the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.” 

Florida estimates that viability begins around 22-24 weeks. Yet, through modern medicine, the earliest a baby has been born in Florida is 20 weeks. The international reproductive rights advocacy think tank, The Guttmacher Institute, puts viability at 24-26 weeks. Since it is undefined in Amendment 4, viability will be adjudicated before the FL Supreme Court and not be governed by proven science.

Natal Intensive Care Units (NICU) can save prematurely born babies that are deemed viable. For the last 35 years, Mary Ann LeVine has been a certified NICU nurse in Fairfax, VA. “This is why it is bogus to offer abortion after 21-22 weeks. Babies are viable after that. If you are a hospital, it is unlikely that after 23 weeks, you would deny resuscitation efforts. It would go all the way up the ethics chain.”

In case of emergency situations, Ms. LeVine shared how medical advancements have changed when viability is determined. She said, “It use to be that 26 weeks was so early to deliver a baby. Now we have medicines that the mother can be given and treatments for early babies that have greatly improved outcomes since I started.” 

In case of an emergency requiring life saving surgery, inside of a NICU hospital there are normally two medical teams in place. Ms. LeVine shared, “At the time of delivery, There is one team for the baby and one for Mom. They are both cared for equally.”

Erin Grall remarked, “Viability has changed as science changes. So you never want to define viability by number of weeks specifically because of the medical facility. So, 24 weeks is considered by most the high end of viability. After that a child could survive outside the womb. I'll tell you, the “Vote Yes” campaign would like to see that number at 26 weeks.”

Should Amendment 4 pass, scientific advancement may not determine viability any longer in the state of Florida. 

Patient’s health is not defined

In any stage of pregnancy when there is varying physical and mental discomfort, what is considered a “patient’s health” concern? This amendment does not define the term. As well, this issue will ultimately have to be adjudicated before the Supreme Court of Florida.

Furthermore, undefined health concerns will open access to abortion up to 40 weeks. The amendment will wipe out any current law on the matter, including viability. The legislature will not have say because the amendment prevents them from making laws that “prohibit, penalize, delay or restrict abortion before viability or when necessary to protect the patient's health…”

The “OR clause” will legalize abortion during any stage of pregnancy for any patient’s health concern. Senator Grall says, “So, the ‘or’ means everything after 24 weeks.  Because, if there are no restrictions before 24 weeks, the only thing it could be speaking to is up until birth. People say, ‘These late term abortions do not happen.’ Well, do you know why they haven't happened? Because they've been illegal. Because after a child is viable outside the womb, we have a standard of care in our statutes that says that you have to care for that child.”

These standards of care will be removed if Amendment 4 is passed. The science, medical advancements and care giving protocols that doctors use to save lives will be discarded for the sake of access to abortion. Those standards of care will not return in our hospitals unless the Supreme Court of Florida finds a legal way to implement them without restriction to abortion services.