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Florida Senate Bill 698: A Trojan Horse
Andrew Shirvell, J.D. | 02 June 2020
Pro-life legislators make-up a majority in each chamber of the Florida Legislature and Florida Governor Ron DeSantis ran as a pro-life candidate.[i] During the 2020 Legislative Session, the Legislature finally passed a long over-due bill that mandates a minor female obtain her parent or guardian’s written consent prior to obtaining an abortion.[ii] Thankfully, Governor DeSantis has pledged to sign it into law.[iii] Despite this pro-life victory, however, a bill violating the dignity of human life in its embryonic form passed both chambers in the waning days of the Legislative Session. This bill originated in the Florida Senate as Senate Bill (SB) 698. As will be explained below, the tortured legislative history and last-minute approval of SB 698 serve as a stark warning to pro-life advocates who may believe that pro-life legislative majorities are enough of a bulwark to stop bad state legislation from passing.
Florida’s Constitution sets the explicit parameters of the annual Legislative Session, which takes place over the course of sixty (60) consecutive days.[iv] In even-numbered years, like this year, the session begins in mid-January and concludes in mid-March.[v] However, legislative committees begin work several months in advance of the session, and, accordingly, many bills are often filed early.
On October 29, 2019, pro-abortion Democratic state Senator Lauren Book (District 32 – Broward County) filed SB 698, which was entitled, “An act relating to assisted reproduction facilities.”[vi] Ostensibly, SB 698 sought to address the issue of unscrupulous fertility doctors using their own genetic material to impregnate female patients without those patients’ knowledge.[vii] Although no cases of such malfeasance have been discovered in Florida, fertility doctors in a number of other states have been accused of deceiving their patients.[viii] As more fertility doctors began to be exposed, states started to address this issue.[ix] Indeed, the fertility industry has long been unregulated, especially in Florida. As detailed in a legislative staff analysis of SB 698, Florida law shockingly did not require the state’s approximately thirty (30) fertility clinics and four (4) donor banks “to be regulated, registered, or inspected.”[x] SB 698 laid out specific remedies (criminal, civil, and administrative) that victims of so-called fertility fraud could pursue against their dishonest doctors. The bill also required the state Department of Health to annually inspect the clinics and donor banks, and to review each of those entities’ newly-mandated “best practice policies.”
As originally-filed, SB 698 made a number of references to “embryos,” but the most troubling was in the context of “donor contracts.” SB 698 required – for the first time – that individuals seeking treatment at a Florida fertility clinic or donor bank had to enter into a contract with that entity before utilizing the services of said fertility clinic or donor bank. Even more remarkably, SB 698 explicitly stated that the contract had to include a provision that addressed what would happen to any unused “specimens,” including whether they “may be disposed of, offered to a different recipient, or donated to science.”[xi] Thus, this provision of the contract was highly problematic because it facilitated the destruction of human embryos.
The Florida Senate leadership assigned SB 698 to three committees.[xii] But the bill went no-where for months until about half-way through the 2020 Legislative Session, when it was added to the Senate Judiciary Committee’s February 11th meeting agenda.[xiii] Although listed fourth on the agenda, SB 698 was taken-up first.[xiv] In presenting the bill, Senator Book explained that she and her husband had recently utilized in vitro fertilization (IVF), which resulted in the birth of twins.[xv] Two leaders of the Florida chapter of the National Organization of Women “waived” in support of SB 698.[xvi] There was almost no debate by the committee members; only one pro-life senator stated that she had some concerns about the bill because it had the potential to run up financial costs for couples seeking fertility treatments.[xvii] Nonetheless, SB 698 unanimously passed the Judiciary Committee.[xviii]
Because Florida’s legislative rules state that all regular committee meetings have to be wrapped-up fourteen (14) days prior to the end of the Legislative Session,[xix] SB 698 could have stalled in the other two assigned committees, unless it was unofficially placed on the “fast track,” which apparently it was. Among the minority Democrats in the Florida Senate, Senator Book – a young senator who had only been first elected in 2016 – seemingly has more power than most of her colleagues. Senator Book is the daughter of Ron Book, who has been often labeled one of the most powerful lobbyists in Florida.[xx] In November 2018, Republican Senate President Bill Galvano curiously appointed Democratic Senator Book chairperson of the Senate Committee on Children, Families, and Elder Affairs.[xxi] As chair of that committee, Senator Book has used her power to stall, and ultimately derail, pro-life bills she vehemently opposes.[xxii]
Two days after SB 698 sailed through the Judiciary Committee, it was placed on the agenda for the Criminal Justice Committee’s final meeting on February 18th.[xxiii] Prior to the committee meeting, Senator Book filed what is known as a “delete all amendment” to SB 698, which essentially re-wrote the bill and also gave it the somewhat less nefarious title of, “An act relating to reproductive health.”[xxiv] As executive director of Florida Voice for the Unborn, I decided it was time to publicly speak out against SB 698 before the Republican leadership let this trojan-horse bill get any further. At the February 18th committee hearing, I testified against both the amendment and the bill itself.[xxv] As I explained, the amendment simply replaced the word “embryo” in the bill with the term “preembryo.” Under Florida Statute 742.13(12), preembryo “means the product of fertilization of an egg by a sperm until the appearance of the embryonic axis.”[xxvi] However, as the United States Conference of Catholic Bishops has rightly made clear, the term preembryo is not scientific and has been purposely coined “to deny moral status to all early human embryos…seeking to justify destructive experimentation during this early stage.”[xxvii] In essence, the amendment’s replacement of the term embryo with the term preembryo was a distinction without a difference. I also pointed out to the committee members that the amendment sought to include a novel statutory definition of “reproductive material” by specifically equating sperm and eggs with preembryos/embryos. I argued that since sperm and eggs are human reproductive cells, it is morally wrong to treat them as legally equivalent to unique human beings at the earliest stages of development.
My testimony elicited several questions from two senators, one pro-abortion and the other pro-life.[xxviii] But in the end, the Criminal Justice Committee unanimously voted to move the bill to its final committee of reference.[xxix] On February 26th, near the end of a long five-hour hearing, the Senate Rules Committee took-up SB 698 and yet another substantial amendment to the bill, which Senator Book again authored.[xxx] The new amendment removed the inspection requirements for Florida fertility clinics and donor banks, and added a whole new section of the bill that now required healthcare practitioners to obtain written consent from patients when giving pelvic exams.[xxxi] The Rules Committee swiftly approved the bill, with the new amendment, and without debate.[xxxii] SB 698 was now ready for a Senate floor vote, and just a little more than two (2) weeks remained in the session.
The Senate leadership placed SB 698 on the March 4th Special Order Calendar. However, on March 3rd, Senator Book filed a floor amendment that again made significant changes to the bill.[xxxiii] The floor amendment removed the requirement concerning contracts, which was a pro-life victory. The amendment also removed all references to “preembryos” and re-defined “reproductive material” as “any human ‘egg’ or ‘sperm’ as those terms are defined in s. 742.13, or a human zygote.” The amendment further defined “zygote” as a fertilized ovum. Because unique human beings, i.e. zygotes, were still being termed under Florida law as the equivalent of human reproductive cells, the amendment continued to make SB 698 unsatisfactory. On the Senate floor, Senator Book faced some questioning by a reliable pro-life senator, but the floor amendment permitted her to slyly claim that the concerns about the treatment of “embryos/preembroys” had been addressed. Accordingly, the floor amendment passed without opposition. And the following day, the Senate unanimously passed SB 698.[xxxiv]
In the Florida House of Representatives, a similar bill to SB 698 had already passed its two committees of reference.[xxxv] But during the last week of the regularly scheduled Legislative Session, the House took up SB 698 – not the House’s version. On March 9th, pro-abortion Democratic state Representative Evan Jenne (District 99 – Broward County) filed a floor amendment to SB 698 that actually made the bill worse.[xxxvi] Not only did the amendment leave the objectionable definition of “reproductive material” intact, but the amendment returned to the use of the term “embryo” by adding provisions to the bill that imply human embryos are not unique human beings but rather are “things” that are in the possession of others.[xxxvii] The floor amendment passed, and the next day the full House passed SB 698 without recorded opposition.[xxxviii] On March 12th, SB 698 was returned to the Senate, which voted to concur in the changes made by the House, allowing the bill to be enrolled.[xxxix] Due to the on-going COVID-19 emergency, Governor DeSantis has yet to formally receive the bill, along with nearly two hundred (200) other bills.[xl]
The saga of SB 698 is instructive for pro-life advocates. The ever-changing dimensions of SB 698, which accelerated during the fog and rush of the Florida Legislative Session’s closing weeks, made effective grassroots lobbying a challenge. In the end, the legislative shenanigans resulted in a pro-life majority Legislature passing a flawed bill with provisions that ultimately do not respect the dignity of embryonic life. Florida Voice for the Unborn remains hopeful that Governor DeSantis will right this injustice and will veto SB 698, as pro-life grassroots activists have been calling on him to do since mid-March.
[ii] Senate Bill 404 (Enrolled). Available online at https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_s0404er.DOCX&DocumentType=Bill&BillNumber=0404&Session=2020
[iv] See Article III, Section 3, of the Florida Constitution. Available online at http://www.leg.state.fl.us/statutes/index.cfm?submenu=3#A3S03.
[vi] SB 698 (Original). Available online at https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_s0698__.DOCX&DocumentType=Bill&BillNumber=0698&Session=2020
[viii] SB 698 Legislative Staff Analysis, dated February 10, 2020, pp. 2-3. Available online at https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=2020s00698.pre.ju.DOCX&DocumentType=Analysis&BillNumber=0698&Session=2020
[ix] Id. at pp. 3-4.
[x] Id. at p. 5.
[xi] See SB 698 (Original), lines 73-75, supra.
[xii] See SB 698, Referred Committees and Committee Actions. Available online at https://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=67224&SessionId=89
[xiv] See Video of February 11, 2020 Senate Judiciary Committee Meeting. Available online at https://www.flsenate.gov/media/videoplayer?EventID=2443575804_2020021130&Redirect=true
[xviii] See SB 698, Referred Committees and Committee Actions, supra.
[xxii] For example, Senator Book opposed Senate Bill 864, which would have expanded the time-frame and options available for mothers to surrender their newborn infants without criminal penalty. See https://thecapitolist.com/baby-box-bill-passes-in-the-house/; see also, SB 864, Referred Committees and Committee Actions. Available online at https://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=67637&SessionId=89
[xxiii] See SB 698, Referred Committees and Committee Actions, supra.
[xxiv] See SB 698 Amendment Bar Code 662392. Available online at https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=662392.DOCX&DocumentType=Amendments&BillNumber=0698&Session=2020
[xxv] See Video of February 18, 2020 Senate Criminal Justice Committee Meeting. Available online at https://www.flsenate.gov/media/videoplayer?EventID=2443575804_2020021198&Redirect=true
[xxvi] Florida Statute 742.13(12). Available online at http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0742/Sections/0742.13.html
[xxviii] See again, Video of February 18, 2020 Senate Criminal Justice Committee Meeting, supra.
[xxix] See SB 698, Referred Committees and Committee Actions, supra.
[xxxi] See SB 698 Substitute Amendment Bar Code 145098. Available online at https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=145098.DOCX&DocumentType=Amendments&BillNumber=0698&Session=2020
[xxxii] See SB 698, Referred Committees and Committee Actions, supra.
[xxxiii] See SB 698 Amendment Bar Code 714748. Available online at https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=714748.DOCX&DocumentType=Amendments&BillNumber=0698&Session=2020
[xxxiv] Senate Vote Tally on SB 698; March 5, 2020. Available online at https://www.myfloridahouse.gov/Sections/Bills/floorvote.aspx?VoteId=19441&BillId=67224&SessionId=89&
[xxxv] See HB 1287, Referred Committees and Committee Actions. Available online at https://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=69589&SessionId=89
[xxxvi] See SB 698 House Amendment Bar Code 167817. Available online at https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=167817.docx&DocumentType=Amendments&BillNumber=0698&Session=2020
[xxxvii] SB 698 House Amendment Bar Code 167817, lines 11-3; 96-100, supra.
[xxxviii] House Vote Tally on SB 698; March 11, 2020. Available online at https://www.myfloridahouse.gov/Sections/Bills/floorvote.aspx?VoteId=19764&BillId=67224&SessionId=89&
[xxxix] Senate Vote Tally on SB 698; March 12, 2020. Available online at https://www.myfloridahouse.gov/Sections/Bills/floorvote.aspx?VoteId=19824&BillId=67224&SessionId=89&; see also, SB 698 (Enrolled). Available online at https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_s0698er.DOCX&DocumentType=Bill&BillNumber=0698&Session=2020
Andrew Shirvell, J.D.
Founder and executive director of Florida Voice for the Unborn, a new Tallahassee-based grassroots lobbying group that only focuses on pro-life issues impacting the unborn.