Health Law

Florida Supreme Court allows one of nation's strictest abortion bans to take effect

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Florida anti-abortion rally

Liberty Counsel founder and Chairman Mathew Staver speaks to reporters in front of the Florida Supreme Court after telling justices a proposed amendment to protect abortion rights should be kept off the ballot on Feb. 7 in Tallahassee, Florida. (AP Photo/Brendan Farrington)

Florida’s conservative supreme court ruled Monday that the state’s constitution does not protect abortion rights, allowing one of the country’s strictest and most far-reaching abortion bans to take effect May 1.

But in a separate decision, the high court also ruled that an amendment to enshrine abortion rights in the state’s constitution can go on the November ballot, for a vote that could undo the ban in a matter of months.

Together, the two rulings will ensure that abortion is a major issue in Florida during the presidential election—with Floridians experiencing the realities of a six-week abortion ban for six months before they have the opportunity to cast a vote on the issue.

“Today’s rulings prove exactly what is at stake at the ballot box,” said Nikki Fried, the chair of the Florida Democratic Party. “Florida voters understand that voting yes on Amendment 4 in November is our last line of defense.”

The abortion ban ruling will have a dual effect on abortion access in Florida. While the case centered on the constitutionality of the state’s existing 15-week ban, which took effect in the summer of 2022, the court’s ruling will also trigger a far stricter law passed last spring that will outlaw abortion after six weeks of pregnancy, before many people know they’re pregnant. Florida’s six-week ban was written to take effect only if the supreme court greenlit the 15-week law.

The six-week ban in Florida—which includes exceptions for rape, incest, fatal fetal anomalies and medical emergencies—will all but eliminate abortion access in the South, while further straining abortion clinics elsewhere across America.

“There is nowhere in the Southeast that can absorb Florida’s patient base. It’s simply not possible,” said Lauren Brenzel, the campaign director of Floridians Protecting Freedom, a campaign dedicated to putting abortion on the ballot in state in 2024. “That is simply an unmanageable volume of patients to try to offset to another state.”

The abortion ban ruling significantly narrows the scope of a provision in the Florida Constitution that protects the right to privacy, added by voters in 1980 and long interpreted by courts as a safeguard against abortion restrictions.

“We conclude there is no basis under the Privacy Clause to invalidate the statute,” Justice Jamie Grosshans wrote in the opinion that will allow the strict ban to take effect. “In doing so, we recede from our prior decisions in which—relying on reasoning the U.S. Supreme Court has rejected—we held that the Privacy Clause guaranteed the right to receive an abortion through the end of the second trimester.”

Antiabortion advocates in Florida immediately celebrated the ruling.

“I am ecstatic, having spent a lifetime of work leading up to this moment,” said John Stemberger, a leading abortion opponent in Florida and the president of Liberty Counsel Action, a conservative advocacy group. “We’ve been arguing for 35 years that the privacy clause was about informational privacy and was never intended by the people to create a fundamental right to abortion.”

The two decisions issued Monday offer a snapshot into the conflicting political forces in Florida and across the nation since the fall of Roe v. Wade in 2022. While Florida’s high court has grown significantly more conservative under Gov. Ron DeSantis (R), surveys show that most of the state’s voters oppose bans on abortion during the very early stages of pregnancy.

Last year, more than 82,000 people got abortions in Florida, more than almost any other state, and far more than were previously reported in any of the 17 states that have now banned all or most abortions. Of the states with bans, Texas had the most reported abortions before the new wave of antiabortion laws, with more than 50,000 abortions performed in the state in 2019.

Voters in November will have a chance to decide if they want people to be able to continue to access the procedure. The Floridians Protecting Freedom coalition gathered more than 1.5 million signatures in less than nine months to put the proposal on the ballot—far more than the 891,523 needed.

Florida Attorney General Ashley Moody objected to the language in the proposed amendment, saying it was too broad. But in their ruling Monday, the justices wrote that the amendment’s intent and potential scope was more than clear.

“The broad sweep of this proposed amendment is obvious in the language of the summary,” they wrote. “Denying this requires a flight from reality.”

Abortion rights advocates said the simultaneous rulings underscored just what will be at stake when voters head to the polls in November.

“This is about to create an unprecedented health-care crisis in the state of Florida,” Brenzel said.

The proposed amendment states: “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.” A 60 percent supermajority would need to vote in favor of the amendment to add it to the constitution.

Florida’s current 15-week ban has already compelled many patients, including those with life-threatening pregnancy complications, to seek abortion care elsewhere. A six-week ban in Florida will affect tens of thousands more people, forcing many to drive hundreds of miles to undergo the procedure.

The six-week ban emerged as an issue in DeSantis’s bid for the Republican presidential nomination. Antiabortion activists have praised the law, but former president Donald Trump, the GOP’s presumptive nominee, has called the six-week ban “terrible.” Some Republicans, pointing to recent electoral defeats for antiabortion causes, have warned of a political backlash in the general election against strict bans.

The ruling reflects a major shift for the Florida Supreme Court, which has struck down several abortion restrictions over the past few decades. It has recently been reshaped by DeSantis into what many consider one of the most conservative courts in the country. Several judges who ruled to uphold the abortion ban have roots in the antiabortion movement.

One of those justices, Charles Canady, is a former Republican congressman who sponsored legislation to outlaw abortions later in pregnancy. His wife, state Rep. Jennifer Canady (R), co-sponsored the six-week abortion ban.

Even if voters decide to add abortion protections to the constitution in November, the battle for abortion rights in Florida could be far from over, said Mary Ziegler, a law professor at the University of California at Davis who specializes in abortion.

In the ruling on the amendment, Ziegler noted, the justices emphasized that any new constitutional protections for abortion could conflict with “personhood rights as applied to the unborn child.”

That language signals that the state supreme court could still intervene to restrict abortion rights, no matter what happens in November, she said.

“This is shots fired, for sure,” she said. They could not have been any clearer that this is not the end of this. … They’re saying the constitution may still protect the fetus and unborn child, and that question is still alive.”

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