Republished with permission from Florida Phoenix, by Michael Moline

The Florida Supreme Court released two blockbuster rulings on abortion rights on Monday—one that within a few weeks will allow a ban on the procedure after six weeks’ gestation to take effect, and another allowing the voters to decide in November whether to amend the Florida Constitution to protect access to the procedure.

In the first ruling, the court voted to overrule its 1989 precedent holding that the Florida Constitution’s Privacy Clause protects the right to abortion. That protection was among the strongest for the procedure in the country, going beyond what the U.S. Supreme Court allowed in its 1973 Roe v. Wade ruling.

The court’s majority noted that the six-week ban, which the Legislature adopted last year, was contingent on one of four things happening: that the court overturned its privacy protection for abortion; that it uphold the ban after 15-weeks’ gestation that the Legislature imposed in 2022; that a state constitutional amendment clarify that the Privacy Clause does not protect the procedure; or that the court recede from others of its earlier rulings protecting abortion rights.

“Today’s decision implicates three of these four events, meaning that the act’s six-week ban will take effect in thirty days,” Justice Jamie Grosshans wrote.

Only Justice Jorge Labarga dissented.

Ballot Language

However, in a 4-3 ruling the majority found that the proposed ballot language describing the amendment would not in any way mislead voters, break the single-subject rule for initiatives, or violate the U.S. Constitution. “Accordingly, we approve the proposed amendment for placement on the ballot,” that unsigned opinion reads.

Floridians Protecting Freedom, organized following the Dodd v. Jackson Women’s Health Organization ruling overturning Roe in 2022, collected close to 1 million petition signatures to place the Amendment to Limit Government Interference with Abortion on the ballot. Citizens’ initiatives need at least 60% of the votes cast to pass.

The issue before the court was whether the measure’s ballot summary fairly describes what it would do without ambiguity or logrolling, meaning sweeping more than one constitutional change under one banner. The court heard oral arguments on Feb. 7.

The Legislature passed a 15-week abortion ban after the U.S. Supreme Court overturned Roe. The next year, the Legislature approved a six-week ban that would take effect 30 days after the court issued any ruling overturning its 1989 abortion precedent.

Monday’s ruling did just that. That would have the six-week ban taking effect in early May. At six weeks, abortion-rights advocates point out, many patients wouldn’t realize they are pregnant.

As for the initiative, Attorney General Ashley Moody argued against it, as did anti-abortion groups including Liberty Counsel, Florida Voters Against Extremism, and Susan B. Anthony Pro-Life America, insisting that the ballot language was too ambiguous.

Moody filed a brief suggesting that the amendment would give health care providers the power to decide both what constitutes “viability” of a pregnancy and whether the “health” of the pregnant person justified a late term abortion without disclosing that to voters. “In essence,” providers would be “serving as their own regulators,” it asserts.

Politics

Both rulings could provide a powerful inducement for abortion-rights advocates to vote on a ballot that will include the presidential contest between Joe Biden and Donald Trump, plus local and state legislative seats.

DeSantis signed both restrictions into law as he was planning his run for president, in what was widely seen as a bid for conservative support. He had no immediate response to the rulings.

Moody did remark on X, formerly Twitter, both regarding the abortion amendment and another initiative to allow adult recreational use of cannabis.

“We appreciate the court revisiting its precedent on Florida’s right to privacy and returning the meaning of that amendment to the voters’ original intention,” Moody wrote.

“That decision outlines the difficulties and divisiveness of allowing vague and misleading initiatives on the ballot. We have argued from the beginning that these two new constitutional initiatives will mislead voters. We maintain that it will be an uphill battle to educate them. However, we respect the court’s decisions,” she concluded.

The Florida Democratic Party issued a statement attempting to link U.S. Sen. Rick Scott, a Republican up for reelection this year, to abortion restrictions.

“Rick Scott can’t run from his record on abortion. This is one of the strictest bans in the country, which eliminates access to reproductive health care before most women know they’re pregnant,” the party said.

“Rick Scott’s years-long mission to restrict reproductive freedom is at odds with over 60 percent of Floridians, and his recent attacks on in vitro fertilization (IVF) and medication abortion certainly haven’t helped,” it continued (links in the original statement).

Abortion Ban Merits

The 1989 decision was handed down by a more liberal court than is sitting now—when DeSantis has filled its ranks with ardent conservatives. It turned on the court’s interpretation of the Privacy Clause the voters approved in 1980, stipulating that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”

The court back then concluded that “[f]ew decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision … whether to end her pregnancy.”

But the present majority found fault with that on a number of grounds, including that the 1989 court didn’t rely on textualist or originalist principles of conservative jurisprudence that didn’t predominate in those days in the way they do now.

Instead, the majority undertook to discern what the voters in 1980 might have understood the clause to mean, and decided it wasn’t clear they applied it to abortion rights. In other words, the T.W. ruling was “clearly erroneous.” In part, the majority argued that the involvement of health care professions renders abortion decisions less than individually private.

In his dissent, Labarga lamented that the majority ignored reams of news coverage and legal rulings in Florida substantiating that the voters in 1980 understood that the privacy right would extend to the right to terminate a pregnancy.

“I lament that what the majority has done today supplants Florida voters’ understanding—then and now—that the right of privacy includes the right to an abortion. The majority concludes that the public understanding of the right of privacy did not encompass the right to an abortion. However, the dominance of Roe in the public discourse makes it inconceivable that in 1980, Florida voters did not associate abortion with the right of privacy,” Labarga wrote.

More on the Amendment

The text of the amendment says: “Limiting government interference with abortion.—Except as provided in Article X, Section 22, 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.”

(The cited provision allows the Legislature to require parental notification before a minor undergoes an abortion with the option of allowing the child to ask a judge for permission instead.)

The summary 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.”

Floridians Protecting Freedom insisted the meaning of “viability” has been well understood since Roe came down in 1973, and that the court doesn’t generally require ballot language to explore the broad range of federal law, given the limit on its length.

The majority dismissed concerns raised by Moody and her organizational allies.

“That the proposed amendment’s principal goal and chief purpose is to limit government interference with abortion is plainly stated in terms that clearly and unambiguously reflect the text of the proposed amendment. And the broad sweep of this proposed amendment is obvious in the language of the summary. Denying this requires a flight from reality,” the opinion reads.

More Reaction

Reproductive Freedom for All President and CEO Mini Timmaraju released the following statement in response:

“The Florida Supreme Court was right to let the ballot initiative go before voters—and it’s a good thing they did because voters will need to head to the polls to undo the damage the court is causing with its decision to allow an extreme ban on abortion to go into effect,” said Mini Timmaraju, president and CEO of Reproductive Freedom for All, in a written statement.

“This is devastating news for access to abortion care in the state and the entire South. It has never been more essential that the right to abortion be enshrined in the state constitution to protect access for Floridians and that we elect federal champions to protect the right to abortion at the national level. We’re committed to working beside our partners on the ground to ensure that happens,” Timmaraju added.

“Florida’s six-week ban goes against the will of Floridians across the political spectrum. Now, it’s up to us as, advocates and citizens, to ensure our personal medical decisions are ours and ours alone to make,” League of Women Voters of Florida co-president Cecile M. Scoon said in her own written statement.

Andrew Shirvell, head of Florida Voice for the Unborn, saw the rulings as a compromise by the justices.

“One cannot ‘compromise’ with evil—and the abortion industry is pure evil,” he said in a written statement.

“Today’s ‘compromise’ decisions are simply unacceptable when five of the current seven sitting justices on the court were appointed by Republican Gov. Ron DeSantis. Clearly, grassroots pro-life advocates have been misled by elements within the ‘pro-life, pro-family establishment’ because Florida’s highest court has now revealed itself to be a paper tiger when it comes to standing-up to the murderous abortion industry.”

Susan B. Anthony Pro-Life America state policy director Katie Daniel of Tampa issued a statement:

“Today’s victory for unborn children who have a heartbeat and can feel pain is in line with the views of the majority of Floridians who want to protect babies and serve mothers and families. As Florida faces what may be its biggest ballot fight yet, Gov. Ron DeSantis must be at the forefront of protecting Florida from Big Abortion’s attempt to eliminate the rights of unborn children, parents, women, and girls.”