'Rape' not defined in Florida law. How will doctors know if they can perform an abortion?

“Rape” isn’t defined in Florida statutes. So how will a doctor providing an abortion know if they’re breaking the law?

Legal experts say Florida's new Heartbeat Protection Act – which largely bans abortions after six weeks of gestation – isn't clear, especially the law's exception delaying the ban to 15 weeks for people who are victims of rape.

Critics say it could create a chilling effect among doctors, who'll likely be reticent or refuse to do any operations protected in the rape exception because of the lack of definition of "rape." Conservative backers of the law disagree, saying the terms used in the legislation have commonly understood meanings as worked out in court cases.

To be sure, Florida doesn't use the term "rape" in statutes. Instead, it has a crime of "sexual battery." But that term is not in the language of the Heartbeat Protection Act.

"You have an exception for rape with no definition of what that means," said Mary Ziegler, a former Florida State College of Law professor now at the University of California, Davis, and an expert on abortion law history.

"If you're a doctor, and you know that this new law subjects you to potential felony punishment under Florida law, you're already going to be reluctant to use exceptions when that's the possible consequence," added Ziegler, the author of "Roe: The History of a National Obsession." "When you don't even know what the term means because it's not defined, that's going to add a layer of hesitation."

The law also requires "a copy of a restraining order, police report, medical record, or other court order or documentation providing evidence" the abortion is needed because of rape, incest or human trafficking. But it does not give guidance to medical professionals on how much evidence or what kind of "documentation" is enough.

"This could have a chilling effect on legal abortions," said Aaron Wayt, legislative chair of the Florida Association of Criminal Defense Lawyers. "Doctors and nurses may be afraid to provide care because they don’t know what circumstances legally fall under the exception.”

As previously reported, the Heartbeat Protection Act took effect May 1, a month after the state's 15-week ban went into effect in April. The 15-week ban, passed in 2022, stalled in the Supreme Court until this April, when the court overruled a 34-year-old decision that said a privacy provision in the state's constitution protected a woman’s right to terminate a pregnancy.

Once the 15-week-ban took effect, it triggered the six-week ban, which was passed in 2023 and sponsored by Sen. Erin Grall, R-Fort Pierce, to start one month later. Grall did not respond to a request for comment.

Sen. Jason Pizzo, D-Hollywood, agrees that the wording of the law's exception could deter some doctors from performing abortions, but its vagueness could protect doctors from charges, too.

"They're doctors of medicine, not of law, and they certainly don't want to be subject to statutory interpretation, but at the same time, there's no authority to dispute their interpretation," Pizzo told the USA TODAY Network-Florida.

A spokesperson for the Florida House of Representatives said the Heartbeat Protection Act was written in "plain, clear language."

"In a case of rape, the statute empowers the victim to document it and seek care and guidance from her physician.," said Jenna Box Sarkissian. "When seeking an abortion under the law’s exceptions for rape, incest and human trafficking, the documentation can be something as simple as a police report or medical record."

John Stemberger, president of Liberty Counsel Action and former president of the Florida Family Policy Council, said there's a variety of ways someone can document they've been raped, including a counselor's note.

Stemberger, one of Florida’s leading anti-abortion advocates, said the documentation is "intended to be broad, as long as (the reason) is documented. It's literally a piece of paper from anywhere."

The definition of 'rape' in Florida abortion law

The law (SB 300) originally did not include the word "rape" in the legislation nor did it have a 15-week exception for rape, incest and human trafficking. Instead, the Senate OK'd an amendment by Sen. Alexis Calatayud, R-Miami, during the 2023 legislative session.

The amendment says the exception applies if "the pregnancy is the result of rape, incest, or human trafficking and the gestational age of the fetus is not more than 15 weeks as determined by the physician."

Out of the 78 amendments introduced on the Senate and House floors, only Grall's amendment, which called the bill the "Heartbeat Protection Act," and Calatayud's were adopted.

Senate Democratic Leader Lauren Book of Plantation said that when the Heartbeat Protection Act made its way through the Senate many of her questions about the bill were not answered.

"Oftentimes, when policy is being drafted, it's not perfect but when women's and girls' lives are being left in the balance, things like this have to be addressed," she said in a phone interview.

Florida law outlines the definition for "sexual battery," which includes more than intercourse, Gainesville criminal defense attorney Caleb Kenyon explained. It makes sense to use the word "rape" in a bill about abortion, he said, but for lawyers like him, doctors and even insurance carriers, it makes things more complicated.

Insurance carriers for physicians could say they won't provide protections for certain operations under the rape exception because that exception does not "exist" under Florida law, Kenyon said.

"Words matter," Kenyon said. "It's not that everybody doesn't understand what it means, because everybody knows what rape is. The problem is, what's the old quote ... 'The law is an ass.' The law doesn't necessarily always make sense."

To clarify, the Legislature will either have to amend a definition for the word "rape" in the law or attorneys will have to wait for judicial decisions and base the definition off of those, he added.

Stemberger said other courts have already determined what "rape" means and have answered the questions as to sexual assault and rape and "where the lines are."

"Rape is very specific, even though the statutory description may be pretty broad, rape is a very specific thing that's defined in the common law and defined in case law in Florida," he said.

Stemberger also doesn't believe the abortion rights advocates' argument that insurance carriers will drop doctors, either. "I think it's just another thing they're trying to throw at the wall," he said.

Book, however, believes doctors are going to leave Florida.

"Why would they stay when they can't uphold their Hippocratic oath?" she said. "They took an oath to do no harm, to do what's right. And the state of Florida is coming in and telling them how to be doctors. Last time I checked, I was a teacher. The sponsor of the abortion ban is a lawyer. None of us were doctors in the Senate."

Context matters

Since the six-week ban went into effect, Book said women seeking abortions have already been turned away by providers.

"They're very angry. They're very scared. They don't know what to do. A lot of people were caught very flat footed and didn't know that this was a right that they had," Book said.

The closest state with a less-restrictive abortion ban is North Carolina, where the cut-off is 12 weeks. Previously, Florida was the destination for people in the South with little or no access to abortion services, with more than 25,000 in the last five years, according to the nonprofit site KFF Health News.

"It is devastating to have to look a woman in the face and say, 'We can't give you the care that you need,' " Book said.

On the same day in April the state's Supreme Court ruled on the abortion ban, it also approved for the November statewide ballot a proposed constitutional amendment that would allow most abortions to occur up to fetal viability, usually considered 24 weeks of pregnancy.

"This November, Floridians will be faced with the most deceptive and dangerous ballot question in our state's history," said Grall, the sponsor of the Heartbeat Protection Act, at a press conference after the court dropped its decision.

"It puts a woman's health at extreme risk, all in pursuit of a radical dehumanizing agenda that allows babies to be aborted on demand and at any time. We must shine a light on the barbarism of this effort and its extreme conflict with the culture in Florida that values life, and I look forward to that fight," she said.

Attorney General Ashley Moody's office previously argued in front of the court that the amendment's language was misleading and overly broad.

Senior Deputy Solicitor General Nathan Forrester and others urged the court to reject the proposal because the failure to define “viability” and “healthcare provider” in the amendment may have legal meanings that differ from what is commonly understood.

Courtney Brewer, the lawyer for Floridians Protecting Freedom, which backs the amendment, said terms like “healthcare provider” and “viability” are commonly understood in an abortion context and won't mislead voters.

Vagueness arguments come up all the time when a statute doesn't define terms, and even sometimes when they do, Ziegler said. But the difference between the Heartbeat Protection Act and the abortion ballot amendment is context.

"If Florida voters are wrong, they can do their due diligence and look at what different advocacy groups are saying things mean and make their own call," she said.

"But usually we have a higher standard when we can put somebody in prison for a felony. Because to take away somebody's liberty, they have to have that much more clarity about what is and isn't prohibited."

Ana Goñi-Lessan, state watchdog reporter for the USA TODAY Network – Florida, can be reached at agonilessan@gannett.com.

This article originally appeared on Tallahassee Democrat: FL abortion law doesn't define rape. Will doctors fear consequences?