Marco Rubio misleads on Val Demings' stance on abortion later in pregnancy

Access to abortion has become a critical issue in the 2022 midterm elections after the U.S. Supreme Court overturned Roe v. Wade, which federally protected the right to the procedure.

In Florida, incumbent Sen. Marco Rubio has tried to cast his Democratic challenger, Rep. Val Demings, as a "pro-abortion radical."

"Val Demings supports abortion up until the moment of birth," Rubio's campaign tweeted Sept. 6. The tweet included a photo of Demings and text that said she "supports taxpayer-funded abortions." 

Rubio's campaign has tweeted the "until the moment of birth" claim more than five times. But that's not an accurate characterization of Demings' stance.

PolitiFact found at least three times when Demings said she supports abortion up to "viability," or when a fetus can survive outside the womb. She also has said she supports abortion after fetal viability if the pregnancy "threatens the health of the woman," and voted for a bill that affirmed that stance. 

Fetal viability is generally around 24 weeks into a pregnancy, according to the National Library of Medicine. Doctors consider a pregnancy "full term" at 39 weeks.

Christian Slater, a Demings campaign spokesperson, told PolitiFact that Rubio is "desperately lying" and that Demings would "fight to make Roe v. Wade law and protect women's constitutional freedoms."

At a May 12 event hosted by Ruth's List Florida, a group that says it supports "pro-choice" women running for office, Demings detailed her view on abortion access: "I support abortions up until the point of viability or when it threatens the health of the woman, the mother."

Questioned by CBS Miami's Jim Defede in August about what constitutes the "point of viability," Demings said it should be determined by a doctor. She reiterated that position in a Sept. 2 interview with the Miami Herald.

"A woman or girl should have the right to an abortion up to the time of viability of the fetus," Demings told the Miami Herald. "I think that women, each woman, each child who may be the victim of abuse, sexual abuse, should be able to sit down with the doctor and let their doctor tell them what the point of viability is."

Rubio's Communications Director Elizabeth Gregory told PolitiFact that Demings "voted for abortion up until the moment of birth" when she supported the Women's Health Protection Act.

Gregory's comment mischaracterizes the scope of the legislation. It did not explicitly require states to keep abortion legal in all cases past the point of fetal viability. 

The bill was part of a Democratic push to codify abortion rights ahead of the U.S. Supreme Court's June ruling that overturned Roe v. Wade. Demings voted for the legislation in the U.S. House; it failed in the U.S. Senate. 

The legislation said governments may not prohibit abortion services before fetal viability. It also said abortions after fetal viability are allowed if a provider determines the pregnancy risks the woman's life or health.

"That's how far the Women's Health Protection Act goes," said Leila Abolfazli, director of reproductive rights at the National Women's Law Center. "Abortion after viability has to do with a pregnant person's health." 

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Maxwell Mehlman, a law professor and co-director of the Law-Medicine Center at Case Western Reserve University School of Law, told PolitiFact in August that physicians already have a legal responsibility to intervene when a patient's life is threatened. 

"The doctor has a legal duty to take reasonable steps to preserve the life and health of the patient," Mehlman said. "If they don't, in the most egregious situations, this has led to criminal prosecutions."

Most states that limit abortion to a specific gestational stage include an exception for medical emergencies.

For example, Florida's abortion law allows abortion past 15 weeks of pregnancy when a patient's life is threatened or to prevent "imminent substantial and irreversible physical impairment of a major bodily function." 

Abortions at 21 weeks or later are exceedingly rare — such cases account for about 1% of all abortions, according to the Centers for Disease Control and Prevention. 

Rubio claimed, "Demings supports abortion up until the moment of birth."

Demings said at least three times that she supports abortion up to "the point of viability," or when the fetus can survive outside the womb. 

She also said she supports abortion after fetal viability if the pregnancy "threatens the health of the woman," and voted for a bill that affirmed that stance. 

Physicians already have a legal responsibility to intervene when a patient's life is at risk. And most states that limit abortion to a specific gestational stage include an exception for medical emergencies.

We rate this claim Mostly False.