PolitiFact FL: Abortion amendment wouldn’t let tattoo artists decide health risk exceptions

By Maria Briceño and Samantha Putterman

On May 13, 2024

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.

In November, Floridians will vote on a ballot amendment that, if approved, will expand abortion access up to the point of fetal viability, overriding the state’s current six-week abortion ban that took effect May 1.

Amendment 4 says abortions cannot be prohibited before fetal viability, typically considered around 24 weeks of pregnancy, or when a health care provider determines it’s necessary to protect the patient’s health, which is called a health risk exception.

Florida’s Republican House Speaker, Paul Renner, who has spoken out against the amendment, took exception to the fact that “health care provider” is not defined in the text.

Health risk exceptions are “in the hands of a health care provider that’s not defined,” Renner told South Florida radio station WLRN in an April 4 interview. “Is that a receptionist at the abortion clinic? Is that a tattoo artist? It doesn’t say. It’s certainly not a physician, as other amendments in other states have provided. So, you’re not even talking to a doctor to make that determination on what could be something that’s risky to the mother at a late stage in pregnancy.”

Similar claims about the amendment allowing “any person that provides a health care service, like tattoo artists” to determine when women qualify for health risk exceptions also circulated in a Miami Spanish-language radio show and have been repeated by the amendment’s opponents.

PolitiFact contacted Renner’s office for comment but did not receive a reply.

The terms “health care provider” and “practitioner” are used and defined in Florida statute in several different ways, depending on the regulation the statute covers, legal experts told PolitiFact. No single statute would apply, and the definition of “health care provider” for abortion care would be determined by Florida’s Department of Health. If the amendment passes and is challenged in court, the state court system would weigh in on the definition.

In response to our questions about whether professionals such as tattoo artists can authorize health risk exceptions or certify viability under Florida law, Weesam Khoury, Florida Department of Health deputy chief of staff, said, “No, tattoo artists are not health care providers.”

Experts in health and constitutional law and reproductive health physicians also said Renner’s statement isn’t accurate. Florida’s amendment would not allow people who aren’t licensed to provide health care to determine whether a patient qualifies for a health risk exception. They said such claims ignore the rules and laws governing the practice of medicine.

Nicole Huberfeld, a Boston University health law professor, said there’s “zero truth” to the statement. “This is not enigmatic terminology,” she said. “Not only are tattoo artists, 911 operators or receptionists not considered health care providers, if they held themselves out as providing health care, that would be unlicensed practice of medicine.” That’s against the law in Florida.

What does the amendment say?

The summary for Amendment 4, titled, “Amendment to Limit Government Interference with Abortion,” reads:

“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. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

PolitiFact contacted Floridians Protecting Freedom, the committee sponsoring the amendment, to find out more about how the language was decided.

Michelle Morton, an ACLU attorney and senior adviser with Floridians Protecting Freedom, said “health care provider” is a generic term that’s used in statutes for multiple state regulations, and the professions included under that term depend on the context.

In this case, “health care provider,” Morton said, would be interpreted in the context of who is qualified to determine whether patients meet criteria for health risk exceptions for an abortion. She said different statutory definitions of what constitutes a health care provider are not necessarily applicable if they aren’t related to abortion care.

For example, in some places in Florida statute, the term “health care provider” includes podiatrists, who specialize in the treatment of feet. But a podiatrist would not be called on to determine an abortion health risk exception.

Morton said the amendment would not change the fact that health care providers are bound by standards of care and medical ethics, as well as oversight from the state.

Florida health care regulation

Florida doctors are regulated by the state’s Board of Medicine, and must follow the “standards of practice,” or they can be disciplined, up to and including losing their license.

We also asked the Florida Medical Association, the state’s professional association of medical providers, if it considers professionals such as tattoo artists or receptionists to be “health care providers.” We did not receive a response by publication.

However, in a 2022 report that discusses public policies adopted by the organization’s delegates and board of directors, the association outlines its abortion policy, including under what circumstances, and by whom, it should be performed.

“Abortion is a medical procedure and should be performed only by a duly licensed physician in conformance with standards of good medical practice and the laws of the state,” the report said. “No physician or other professional personnel shall be required to perform an act violative of good medical judgment or personally held moral principles.”

The association has defined the term “health care provider” in other documents to include a “healthcare professional, healthcare facility, or entity licensed or certified to provide health services in this state as recognized by the board,” and has clarified that “scope of practice” should be “specifically defined” to keep “health professionals’ responsibilities in line with their training and respective titles.”

How Florida statute defines health care provider

PolitiFact found several definitions for “health care provider” or “practitioner” in Florida law. These statutes cover a range of regulations and include rules governing professions and occupations, patient’s rights and medical malpractice.

• Florida Statute 765, which covers advance directives to inform providers about a patient’s preferences at the end of life, defines a health care provider as “any person licensed, certified, or otherwise authorized by law to administer health care in the ordinary course of business or practice of a profession.” 
• Florida Statute 766, which covers medical malpractice, says a “health care provider” can be a medical doctor, an osteopathic doctor and a podiatrist. 
• In Florida’s Patient Bill of Rights, which is intended to ensure that patients are treated respectfully and can exercise informed consent, “health care provider” is defined as a “physician” licensed under Florida statute chapters 458, 459 and 461, which covers medical doctors, osteopathic doctors and podiatrists. 
• In another section of Florida law, “health care practitioner,” which is slightly different from the amendment’s wording, includes professions such as acupuncturists, dental hygienists, nutritionists and massage therapists. (Tattoo artists and receptionists are not included.)

Legal experts said none of these provisions are directly related to abortion health risk exceptions.
“All states license health care providers to practice medicine, sometimes calling them providers, sometimes practitioners, but this is a longstanding set of state regulations that is not mysterious or controversial,” Huberfeld, from Boston University, said.

Bob Jarvis, a Nova Southeastern University law professor, took issue with the amendment not defining the term.

“I think the drafters of Amendment 4 did a poor job, and either should have left the term ‘health care provider’ out altogether or should have explicitly defined it,” Jarvis wrote in an email to PolitiFact. “In the end, however, it probably won’t matter because the courts probably will (if the amendment passes) read into it a requirement that the health care provider be a licensed medical professional.”

Others said they thought the answer was obvious.

“I think it is fair to say a common sense, textual reading of the amendment anticipates that the health care provider referred to would be the one qualified to determine that the abortion was necessary to protect a pregnant woman’s health,” said Louis Virelli, a Stetson University College of Law professor, wrote in an email. “I therefore find it hard to imagine how a tattoo artist would be able to make that determination.”

Health risk exceptions require specialized knowledge

More than 90% of abortions take place in the first trimester, or up until around 13 weeks of pregnancy, according to U.S. Centers for Disease Control and Prevention data. Abortions after fetal viability, which marks the point at which a fetus is able to survive outside the womb, are rare and typically happen because of severe fetal anomalies or health risks to the pregnant woman.

Health care providers typically place viability between 22 and 25 weeks of pregnancy. Neonatal survival rates vary and depend on the size and health of the fetus, the pregnant woman’s health and the health care facility.

“Physicians, if anything, have been very reluctant to perform abortions in health emergencies that are clearly justified under state statutes for fear of liability,” Mary Ziegler, an abortion historian and law professor at University of California, Davis, previously told PolitiFact. “The terms are ambiguous, but who’s going to be interpreting that? The Florida Supreme Court and the conservative legislature.”

Most state abortion law health risk exceptions permit abortion when there’s a serious risk or substantial and irreversible impairment of a major bodily function. However, the language is often vague, without specific clinical definitions of what qualifies, according to a December 2023 report by KFF. This leaves medical practitioners vulnerable, with the determination often being debated or decided by hospital lawyers or courts.

Reproductive health experts told us that, even if it were legal for nonmedical professionals to determine health risks under the amendment, obstetricians and gynecologists would only provide care if they personally saw the patient, as failing to do so would be against their medical training.

Leah Roberts, a reproductive endocrinologist and fertility specialist with Boca Fertility in Boca Raton, Florida, said qualifying a patient for a health exception is not a simple task and requires years of study and experience. “It’s certainly a lot of nuance,” Roberts said, “and we’ve been trained for a very, very long time to be able to parse some of that in order to provide the best care for our patients.”

Our ruling

Renner said that, for health risk exceptions in Florida’s abortion amendment, “You’re not even talking to a doctor to make that determination.”

Health law experts said Renner’s statement is inaccurate and the terms “health care provider” and “practitioner” are used throughout Florida statutes, with the definition depending on the regulation and context.

Those Renner cited such as tattoo artists and receptionists are not considered to be health care providers, experts said. Anyone practicing medicine without a license would be violating state law.

Florida health care providers are regulated by the state and must follow medical ethics and the standards of practice or risk losing their licenses.

We rate the statement False.

This piece was republished from the WLRN.