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Ahead of a Fox News debate between California Gov. Gavin Newsom and Florida Gov. Ron DeSantis, an ad from a political action committee tied to Newsom claims that a law signed by DeSantis would subject women who get an abortion after six weeks to felony charges.
DeSantis’ campaign calls the claim “a lie,” citing DeSantis’ insistence in media interviews that the law does not criminalize women who get abortions, only physicians who perform them.
Nonetheless, Democrats cite ambiguity in the language of the new law, which would make it a felony for “[a]ny person who willfully performs, or actively participates in, a termination of pregnancy” after six weeks of pregnancy. They say the inclusion of anyone who “actively participates” might subject women getting an abortion to criminal charges. DeSantis insists that only refers to “medical practitioners” and that he does not support penalties for women who get an abortion outside the state’s legal window.
Newsom, a Democrat, and DeSantis, a Republican candidate for president, will square off in a 90-minute debate on Fox News on Nov. 30 in what the network is advertising as “The Great Red vs. Blue State Debate.”
Newsom on the Attack
On Nov. 19, Campaign for Democracy, a political action committee launched by Newsom, began airing a TV ad attacking DeSantis for signing into law a six-week abortion ban in Florida in April.
The ad begins with the image of a “wanted”-style poster as the narrator 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. Even though many women don’t even know they’re pregnant at six weeks. That’s not freedom. It’s Ron DeSantis’ Florida.”
Newsom posted the ad on X, formerly known as Twitter, and commented, “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.”
The rapid response team for the DeSantis campaign called the ad “[s]heer desperation” and warned, “if this ad is any indication, Newsom will spend the debate lying about @RonDeSantis‘ record to deflect from his own failures.”
And DeSantis campaign spokesman Bryan Griffin also responded on X: “Democrats like @GavinNewsom can’t defend their own position on abortion (up until birth) so they make stuff up to scare people. If Newsom tries this nonsense at the debate, @RonDeSantis will set him straight the way he’s already set the media straight on this lie.”
Griffin linked to a video of DeSantis in an interview on CBS News denying that the law he signed would criminalize women.
Florida’s Abortion Law
In April 2022, DeSantis signed a bill that banned most abortions after 15 weeks, replacing a previous law that allowed abortions up to 24 weeks. The state Supreme Court is considering a challenge that claims the law violates the state constitution.
After the U.S. Supreme Court overturned Roe v. Wade, returning the jurisdiction on abortion rights to the states, the Republican-led Florida Legislature addressed the abortion issue earlier this year, and passed a six-week ban. The bill includes an exception for mothers whose lives are at risk, and delays the abortion ban to 15 weeks for pregnancy caused by rape, incest or human trafficking. DeSantis signed the bill into law in April, though it does not go into effect unless or until the state Supreme Court upholds the constitutionality of the 2022 law.
Under the penalty portion, the law states, “Any person who willfully performs, or actively participates in, a termination of pregnancy in violation of the requirements” of the law “commits a felony of the third degree.” (Third-degree felonies carry a sentence of up to five years in prison.) That ramps up to a felony of the second degree in abortions that result in the death of the woman.
Clarifying Language Proposed
There were more than 50 unsuccessful amendments proposed to the bill, but none sought directly to change the “actively participates in” language.
But on Sept. 15, Florida Senate Democratic Leader Lauren Book filed a bill to make clear that women getting an abortion cannot be criminally charged under the new abortion law. The proposed bill cites comments DeSantis made in an interview with Norah O’Donnell on “CBS Evening News” assuring that the penalties in the abortion law do not pertain to women getting an abortion.
DeSantis, Sept. 13: We have no criminal penalties, the penalties are for the physician.
O’Donnell: Governor, I read the bill, it says just this, it does include jail time and fines for “any person who willfully performs, or actively participates in a termination of pregnancy.”
DeSantis: Right, and that’s for the providers. That is not for the women. We’ve litigated this.
O’Donnell: Is a woman not actively participating in the termination of her pregnancy?
DeSantis: No, because she’s not a medical practitioner.
O’Donnell: So you are not for criminalizing women?
DeSantis: No. No. Absolutely not. And that will not happen in Florida. … A lot of these women, they don’t get any support. You know, they have a father who abandons them. They don’t have the resources. Now in Florida, we’ve done a lot to try to help on that. But a lot of these folks are very vulnerable. A lot of them don’t want to do an abortion, but they feel like they have no other option. And so that’s part of the reason why I’ve never supported penalties against women.
DeSantis has made similar assurances in other public forums. In an interview in August, Dasha Burns of NBC News read the penalty language in the bill and asked DeSantis to what extent he thought women should be punished for violating the abortion ban.
“Not at all, no,” DeSantis responded. “I don’t think this is an issue about the woman. … At the end of the day, I would not support any penalties on a woman.”
More recently, the DeSantis campaign posted a clip from an event at Winthrop College in South Carolina on Oct. 19 in which DeSantis pushed back against the idea that the law he signed would lead to criminal prosecution of women who get abortions.
“Of course you’re not going to jail a woman,” DeSantis said. “We have a heartbeat bill in Florida. It has nothing to do with putting a woman in … it’s ridiculous that that would even be mentioned.”
When filing her bill to clarify that women cannot be criminally charged for violating the six-week ban, Book said “we’re not just going to take his [DeSantis’] word for it, we’re fighting to ensure it.” The bill would add language to the end of the section on penalties that states, “This paragraph does not apply to the pregnant woman who terminates the pregnancy.”
Democratic Florida Rep. Anna Eskamani, who opposed the six-week abortion ban and supports Book’s bill to clarify the language, said that despite DeSantis’ assurances, he can’t be trusted.
“Governor DeSantis can claim what he wants but what we know is that the law currently isn’t clear and he can’t be trusted on this issue,” Eskamani told us via email. “There is nothing in state statute or code that explicitly prevents a pregnant person from being criminalized. Anti-abortion lawmakers are constantly lying to voters and trying to downplay the harm of their policies, too. We have learned since the Dobbs decision that anti-abortion states will always find a way to criminalize people for their pregnancy decisions and outcomes.”
We asked DeSantis’ campaign if the governor would support the Book bill to clarify that women would not be criminally charged for violating the six-week ban, but we did not get a response on that question.
Case Law on the Issue
In his interview on “CBS Evening News,” DeSantis said that the issue of whether women could be prosecuted for violating abortion laws had been litigated, and that they cannot.
Although he did not expound, DeSantis appears to be referencing the case of Florida v. Ashley, involving an unwed teenager who shot herself in the abdomen while in the third trimester of pregnancy. She survived, but the fetus did not. She was prosecuted for manslaughter and third-degree murder, but the state Supreme Court ruled that she could not be criminally prosecuted.
“At common law, while a third party could be held criminally liable for causing injury or death to a fetus, the pregnant woman could not be,” the court wrote in 1997.
The court noted that the penalty section of a 1993 Florida law limiting abortions in the third trimester stated that, “Any person who willfully performs, or participates in, a termination of a pregnancy in violation of the requirements of this section is guilty of a felony of the third degree․” In its opinion, the state Supreme Court noted that “in order to overturn a long standing common law principle,” the state Legislature would have had to enact a statute that explicitly criminalized women who got an abortion in violation of the state statute. “Florida has not done so,” the court wrote.
So, since 1997, Florida has had similar language in its abortion laws, and no women in violation of those state laws have been criminally prosecuted. And there is no indication that the legislators who introduced the six-week ban intended for criminal penalties to apply to women who get abortions. A bill analysis in March, for example, only talks about amending the law “to prohibit a physician from knowingly performing or inducing an abortion after six weeks of gestation.”
The Newsom PAC ad relies on interpreting the phrasing “actively participates in” to mean that women who get abortions could be prosecuted. That hasn’t been established in the courts, and DeSantis has said repeatedly and unequivocally that that is not the meaning or intent of the law. Nonetheless, concerns about ambiguity in the wording of the law could be settled if the law were amended to add the language suggested by Book.
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