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Florida Supreme Court upends abortion landscape in the South

In two rulings, court defends abortion ban, but permits voters to decide whether to make abortion a constitutional right in November

The Florida Supreme Court on Monday upheld the state’s existing 15-week abortion law, which will in turn allow a six-week ban signed by Florida Gov. Ron DeSantis in 2023 to go into effect.
The Florida Supreme Court on Monday upheld the state’s existing 15-week abortion law, which will in turn allow a six-week ban signed by Florida Gov. Ron DeSantis in 2023 to go into effect. (Tom Williams/CQ Roll Call)

In dueling rulings that will likely make Florida an epicenter of the abortion debate this fall, the Florida Supreme Court on Monday upheld the state’s 15-week abortion ban, paving the way for a much stricter six-week ban to take effect. 

But it also permitted an abortion rights ballot measure to go before voters in November that could enshrine abortion rights in the state constitution.  

The two decisions set up a dichotomy: In one case, judges say the state’s constitution does not protect abortion rights. In the other, justices say that question can be left to voters.

The first ruling examined the constitutionality of the state’s existing 15-week abortion law, which was passed in 2022. The six-week ban — one of the strictest in the nation, signed by Republican Gov. Ron DeSantis in April 2023 — was written to take effect if the state Supreme Court let the 15-week ban go forward.

That decision would effectively eliminate abortion access in the southeast United States. Before the bans, Florida was a frequent destination for women seeking abortions from neighboring states with strict abortion bans. The new law includes exceptions for rape, incest, fetal abnormalities and medical emergencies. 

In the case, Planned Parenthood v. State of Florida et al., abortion providers argued that Florida’s privacy clause protected the right to an abortion. The court disagreed, saying that there is “no clear right to abortion embodied within the Privacy Clause.”

But the abortion ballot initiative, which the court also greenlighted Monday, could upend the first decision. 

That ballot initiative would enshrine abortion access in the state constitution and ensure that 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.”

If approved by voters, it would roll back Florida’s abortion ban to viability, which is considered around 24 weeks of pregnancy. The initiative would need 60 percent approval to pass. The proposal would not alter the Florida Legislature’s authority to require parental notification for a minor seeking an abortion.

In a 36-page ruling, the majority of the court wrote that the challengers’ argument that the ballot initiative language is misleading does not have merit and there is no basis for concluding the proposed amendment to the Florida Constitution is invalid under the U.S. Constitution.

“Voters can see and decide for themselves how the specificity of the proposal’s terms relates to the proposal’s merits,” they wrote. 

Republicans in the state, including DeSantis, argued that the ballot initiative’s language was too vague and that “health” and “healthcare provider” could be interpreted in many ways by voters. 

The decision follows a February hearing in which some justices expressed skepticism over challenges to the ballot.   

Since the U.S. Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization decision that overturned the federal right to an abortion, voters have aligned with abortion rights on every state ballot related to abortion. 

A changing political landscape

In Florida, more than 60 percent of voters indicated they would vote yes on the ballot measure, including more than 50 percent of Republicans, according to recent polling from the University of North Florida.

Campaign officials for President Joe Biden and Vice President Kamala Harris said the rulings could reshape the November election in the Sunshine State.

“We definitely see Florida in play,” Biden-Harris 2024 campaign manager Julie Chavez Rodriguez told reporters during a call Tuesday.

Former President Donald Trump beat Biden in Florida in 2020 by 3 percentage points, but the last time a Democratic presidential candidate won the state, there was an anti-abortion measure on the ballot. That was in 2012, when President Barack Obama won reelection and Floridians voted down a Republican ballot initiative that would have eliminated privacy rights under the state constitution and reduced abortion privacy rights.

“It’s not really a Democratic issue; it’s not really a Republican issue. It’s more about freedom for the people of Florida…and how much we want political interference in our medical decisions,” Florida state House Minority Leader Fentrice Driskell said on the Biden-Harris campaign call.

Democrats in the state were looking for the ballot question to galvanize voters in November, especially as they seek to defeat Republican Sen. Rick Scott, who is running for a second term.

Former Rep. Debbie Mucarsel-Powell, a Democrat who is challenging Scott, said Monday’s rulings led to “a lot of mixed feelings.”

“My commitment is stronger than ever to make sure that Floridians understand that we have to vote in November to make sure that we have access to reproductive health care, the freedom to choose when and how to start a family,” she said.

Mucarsel-Powell said that many of the signatures collected to get the measure on the ballot came from Republican-registered voters, who would likely have to be part of a coalition to reach the 60 percent threshold to pass the amendment.

“Florida is a very independent state,” she said. “This is a purple state, and Floridians are really exhausted and done with the extreme policies that have been coming out of the supermajority in Tallahassee and from people like Rick Scott in Washington, D.C.”

Scott, meanwhile, fired back in a statement, saying that Floridians “agree that there should be some reasonable limits placed on abortion. Sadly, my opponent opposes ANY limits on abortion, allowing it even after a baby can feel pain and suck their thumb, even up to the baby’s due date…. That’s what extremism looks like.”

Florida’s judiciary has become more conservative in recent years; DeSantis largely reshaped its Supreme Court, appointing five of its seven judges. 

Florida Voice for the Unborn, a coalition working against the ballot initiative, said the high court was compromising “with evil” by letting the ballot amendment go forward but applauded the decision to let the 15-week and six-week bans move forward.

“One cannot ‘compromise’ with evil — and the abortion industry is pure evil. Today’s ‘compromise’ decisions are simply unacceptable when five of the current seven sitting Justices on the Court were appointed by Republican Governor Ron DeSantis,” the group’s executive director, Andrew Shirvell, said in a statement.

​Also on Monday, Florida’s high court ruled that a ballot initiative to legalize the recreational use of cannabis can move forward and be placed on the ballot in November.

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