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 the Legislature imposed in 2022 after 15-weeks’ gestation; that a state constitutional amendment clarify that the Privacy Clause does not protect the procedure; or that the court recede from other of its earlier rulings receding from its earlier defense of 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 is 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 in 2022 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 healthcare 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.
To pass, the initiative needs the support of 60% of the voters.
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.
This developing story will be updated.
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This article originally appeared here and was republished with permission.
