Abortion in Florida remains in limbo until conservative state high court ruling

TALLAHASSEE, Fla. — It’s been a year since the Supreme Court struck down Roe v. Wade, but Florida’s abortion bans remain in limbo while the state’s highest court weighs what to do.

The conservative-leaning Florida Supreme Court, completely overhauled by Gov. Ron DeSantis in the past four years, is poised to decide whether abortions are banned anywhere from six weeks to 24 weeks of pregnancy in the country's third most populous state, which remains a destination for people seeking the procedure in the South.

There is no set time when the Florida Supreme Court will act, but abortion-rights advocates are anticipating the court will allow recently passed restrictions to remain in place, including a ban on abortions at six weeks of pregnancy. Abortion-rights advocates are already focused on gathering voter signatures to place a citizen initiative on next year’s ballot.

“The majority supports protecting abortion rights. Waiting for the courts to save us is not realistic,” said Democratic state Rep. Anna Eskamani, who once worked for Planned Parenthood.

Reproductive rights remain a contentious issue one year after the U.S. Supreme Court struck down abortion protections. Florida legislators in 2022, acting in anticipation of the U.S. high court scrapping Roe, banned all abortions after 15 weeks of pregnancy without exceptions for victims of rape and incest. And this year, state lawmakers further restricted abortions at six weeks of pregnancy — although they did allow for exceptions if there is proof of a crime.

DeSantis signed Florida’s six-week ban into law behind closed doors late at night and does not discuss it in depth while campaigning, a sign of how fraught the issue is politically for him and other Republicans running for president.

Right now, the 15-week ban remains the law in Florida until the state Supreme Court acts on a legal challenge to that measure, which was brought by Planned Parenthood, the American Civil Liberties Union and a handful of abortion providers. Due to a trigger provision, the state’s six-week ban won’t take effect until 30 days after the court rules.

Florida’s status has resulted in an influx of people from other states with stricter bans. The most recent data from the state Agency for Health Care Administration shows that out of more than 33,000 abortions performed in the state by early June, nearly 3,000 of them were administered to patients from other states.

The legal challenge before the court revolves around a 1989 Florida Supreme Court ruling that struck down a parental consent law because of the state’s unique privacy clause. It states a resident has the “right to be let alone and free from government intrusion into his private life.”

At the time, Florida Supreme Court Justice Leander Shaw wrote for the court that “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy … We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime, except perhaps the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment.”

Conservatives disagree fervently with that assessment, as does Florida Attorney General Ashley Moody and lawyers for the GOP-controlled Legislature. Moody and her lawyers even cited the U.S. Supreme Court’s Dobbs decision, which overturned Roe, in a March filing by contending that the 1989 decision, like Roe, was “egregiously wrong from the start.”

They contend that those who backed the amendment did not draw up the privacy clause with the intention to cover abortion here but that its “goal instead was to keep ‘Big Brother’ in check.”

“It certainly would not provide a right to cause harm, including to unborn life,” states the brief filed by Moody. “Ordinary speakers in the years preceding the amendment rarely used its language to describe abortion.”

A ruling that would eventually allow Florida to go forward with the six-week ban would help achieve long-standing goals of abortion opponents who have asserted that the privacy clause does not apply to abortion.

“It’s something we have worked on for a number of years,” said John Stemberger, president of Florida Family Life Council, adding that he is “fairly comfortable” the state Supreme Court will uphold Florida law. “It would not protect all unborn children, it would protect a large number of unborn children.”

Florida’s high court has changed radically since 1989, and many expect it to interpret the Florida privacy clause differently. Five of the justices who now sit on the panel were appointed by DeSantis, who has bragged on the campaign trail how he turned the court from one of the most liberal to one of the most conservative in the country.

One of the justices the governor did not appoint — Supreme Court Justice Charles Canady — is a former member of Congress who sponsored a ban on certain types of abortion procedures that was vetoed by then-President Bill Clinton. Republican state Rep. Jennifer Canady, who is married to Charles Canady, was a co-sponsor of the six-week ban and strongly defended the measure on the Florida House floor.

However, Chief Justice Carlos Muñiz, who once worked as a top lawyer for then-Gov. Jeb Bush, wrote an article for a conservative think tank in 2004 that suggested the privacy clause did cover abortion. Muniz’ authorship of the article was first noted by The Washington Post.

The high court has not released a timeline for a final decision. Justices have not asked for oral arguments on the case, which has been fully briefed by lawyers on both sides. The court has also allowed interested parties to weigh in, including outside conservative groups, GOP attorneys general from 19 states, abortion rights advocates, obstetricians and the National Council of Jewish Women.

The court usually takes a hiatus during summer, but there’s nothing that would stop it from issuing an opinion on the highly-watched case. Meanwhile, Floridians Protecting Freedom — a coalition of groups that includes the American Civil Liberties Union of Florida, Planned Parenthood and others — has launched an petition drive to ask voters to protect abortion rights “before viability.” That is usually considered around 24 weeks of pregnancy.

The group must gather nearly 900,000 signatures in order to qualify for the ballot. Organizers say they have collected roughly 240,000, though none have been officially certified by election officials. Roughly 1,300 signatures alone were collected at a recent concert in Orlando, according to Eskamani.

Lauren Brenzel, campaign director for the ballot initiative, said the groups will push ahead to put the citizen initiative on the ballot regardless of what the state Supreme Court does. Sixty percent of voters must approve the initiative — which Stemberger said will draw organized opposition — in order for it to pass.

“A wide variety of Floridians do not want to see a 15-week ban in effect, let alone a six-week ban,” Brenzel said. “We need a clear and explicit provision in the state constitution so we can prevent this from being a political issue in the future.”