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The state’s high court ushered in a six-week abortion ban starting next month but gives voters the final say on the issue in the general election.


TAMPA BAY TIMES
TALLAHASSEE — In a momentous day for reproductive health in Florida, the state’s Supreme Court on Monday issued opinions that usher in a six-week abortion ban but leave open a way for the state’s voters to protect and expand access to the procedure.

Justices ruled 6-1 to uphold Florida’s 15-week abortion ban, which was passed in 2022 but then challenged by Planned Parenthood and other groups as a violation of Florida’s constitutional right to privacy.

The ruling allows a far stricter six-week ban, which was passed by GOP lawmakers and signed into law last year by Gov. Ron DeSantis, to take effect within 30 days. Such a restriction would likely disrupt abortion access for women in Florida and across much of the southeastern U.S.

But, conversely, the court Monday also voted 4-3 to allow a proposed constitutional amendment that protects the right to abortion to go before voters in the November election. The majority’s ruling sided against Florida Attorney General Ashley Moody, who argued the ballot language would mislead voters.

Here are key takeaways from a blockbuster day on the Florida Supreme Court.

Access to abortion in Florida will be drastically reduced until at least next year
The state’s looming six-week restriction has been described as a blanket ban by abortion rights advocates, who say many women don’t know they’re pregnant until after six weeks.

More than 84,000 abortions were performed in Florida in 2023. The majority were performed after six weeks, according to data from the state’s Agency for Health Care Administration.

Overall, from 2018 to 2023, Florida doctors performed about 41% of abortions by six weeks.

What is the new six-week law? Does it have exceptions?
The Florida law that takes effect in 30 days bans most abortions after six weeks of pregnancy.

It has exceptions for victims of rape, incest or human trafficking, but only up to 15 weeks of pregnancy and only if the victim has documentation to prove evidence of the crime. That could be a police report, medical record, restraining order or “other court order or documentation,” according to the bill’s language.

The legislation allows for abortions later in pregnancy when necessary to protect the health of the mother. In most instances, two physicians must certify in writing that an abortion is necessary to save a woman’s life or avoid a serious physical impairment.

If a pregnancy has not advanced to the third trimester, a woman can also access an abortion if two physicians certify that the fetus has a fatal abnormality.

Other abortion laws remain unchanged under a six-week ban, including a mandatory 24-hour waiting period and an in-person appointment with a doctor before a pregnancy can be terminated.

The justices alluded to fetus rights
During oral arguments over the proposed constitutional amendment, Chief Justice Carlos Muñiz expressed interest in determining whether unborn children are covered in Florida’s constitutional guarantee of basic rights for all natural persons — and whether an amendment expanding abortion access is a violation of those rights.

The justices didn’t address that issue in the majority’s opinion allowing the abortion amendment on the ballot. But Muñiz wrote a concurring opinion asserting that the Constitution’s declaration of rights reflects a “moral order that government exists to protect,” and said the amendment “would constitutionalize restrictions on the people’s authority to use law to protect an entire class of human beings from private harm.”

Justice Jamie Grosshans, in her dissenting opinion, also mentioned the rights of the unborn. Voters should be aware of how the amendment would impact how “personhood is defined” and how it may affect the state Constitution’s assertion that all “natural persons” have a right to life and liberty,” she wrote.

Following Muñiz’s questions in oral arguments, opponents of the ballot measure submitted information to the court supporting the idea of constitutional rights for fetuses.

One opponent, an evangelical nonprofit called Liberty Counsel, pointed to an Alabama Supreme Court ruling that determined frozen embryos used for in vitro fertilization were people under Alabama’s Constitution. That decision caused at least three fertility clinics to pause their treatments.

Mary Ziegler, a reproductive law expert at University of California Davis, said the justices’ decision to address unborn rights in their ruling was a surprise.

”Usually you don’t reach out and hint at views, at incredibly momentous questions of constitutional law, when no one needs you to.”

Florida is one of the few southern states where a citizen initiative is possible
The Florida Supreme Court’s decision to allow the abortion amendment could affect not only Floridians, but women across the southeastern U.S. who have traveled to Florida because they can’t get the procedure in their own state.

Almost 10% of pregnancy terminations in Florida in 2023 — more than 7,700 — were provided to women from out of state, according to state data.

Unlike Florida, many of those states do not have a direct pathway for residents to change the law.

In Florida, getting an amendment on the ballot is an expensive process that requires nearly a million signatures from registered voters and then 60% backing during an election to pass. But it has proven viable in recent decades, including with amendments to raise the state minimum wage and to restore voting rights to people with felonies.

Mississippi also has a citizen initiative process. Arkansas, which has a total ban on abortion unless it is done to save a pregnant woman’s life, also has a pathway for citizen initiatives and a group has begun collecting petitions for a proposal that would protect abortion up to 18 weeks.

But the Arkansas public is more inclined to think abortion should be generally illegal compared to Florida, where the majority of the public believes abortion should be mostly legal, according to the New York Times.

What’s next for abortion in Florida?
The court’s decision will likely ensure that abortion will be a key issue in the Nov. 5 general election.

The proposed amendment would stop any law that prohibits, penalizes, delays or restricts abortion “before viability” or when necessary for patient health. It will be on the ballot as Amendment 4 and, if approved, will go into effect on the Tuesday following the first Monday of January 2025.

The most profound effect, if passed, would be overriding Florida’s six-week abortion ban. But it could also mean that Florida’s mandatory 24-hour waiting period, which took effect in 2022, could be undone, because it is a “delay” to abortion access.

The ballot language specifies that it does not change Florida law requiring that parents be notified when their child has an abortion. But that’s different from parental consent, where parents must give an affirmative yes for their child to have a termination. That law, which was passed in 2020 at DeSantis’ behest, would likely be void.

I assume as long as the fetus is now considered "a person" by the courts that everyone can claim them as dependents on their taxes now? Especially those that have frozen embryos ?

Will Abortion Make Florida a Swing State?
Overruling DeSantis’s six-week restriction is coming to the ballot.


WSJ Editorial Board

Take a bow, Justice Samuel Alito. On Monday the Florida Supreme Court provided further vindication for his 2022 Dobbs opinion overturning Roe v. Wade and returning abortion policy to the people to decide. The Florida court let Gov. Ron DeSantis’s six-week abortion restriction take effect, while also approving a ballot measure that will leave its ultimate fate up to voters.

The fall of Roe unleashed Democratic enthusiasm to protect abortion rights, including with state constitutional amendments passed by Michigan and Ohio. President Biden hopes it will propel voters to the polls in November. Mr. Biden lost Florida in 2020 to Donald Trump by 3.4 points, or 372,000 votes. Democrats are also trying to get abortion on the ballot in other states, including Arizona, which Mr. Biden won by 10,457 votes.

Liberals claim Dobbs has backfired on Republicans, but Justice Alito doesn’t think his job as a judge is to engage in politics by other means. “We do not pretend to know how our political system or society will respond to today’s decision,” he wrote. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.” Just so.

The political reality since then is that the people reign, as they will in Florida. In one opinion this week, the Tallahassee justices reversed a state version of Roe, which had read abortion protections into a privacy clause added to the Florida constitution in 1980. The persuasive 6-1 ruling says advocates of that amendment, who included abortion opponents, argued it would be protection from newly computerized government data collection.

Yet if voters explicitly want to put abortion in the Florida constitution, they can do it. In a separate 4-3 decision, the state Supreme Court signed off on a November ballot referendum. “No law,” the constitutional proposal reads, “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.”

Opponents will argue this language is vague, maybe intentionally, and they’ll have a point. Does a “health” exception cover mental health? Who qualifies as a “healthcare provider”? But these are the arguments Republicans have been making, and losing, for two years. Michigan’s abortion amendment passed 56.7% to 43.3%. Ohio’s 56.8% to 43.2%. The exit poll in the latter state says 18% of Republicans and 64% of independents voted yes.

Both states had strict abortion laws, and one takeaway is that if voters think they’re being given an all-or-nothing choice, they might go for all. Yet the majority of Americans are in the middle. Gallup’s latest figures, from 2023, show that 69% think abortion should be “generally legal” in the first three months. But in the second three months, it flips to 55% illegal, which includes 52% of women.

When Florida passed a 15-week abortion restriction in 2022, Republicans were near the center of public opinion. That law would have been easier to defend at the ballot box against the current progressive position that abortion should be safe, legal, unrestricted, celebrated and publicly funded. Then last year Mr. DeSantis signed a six-week law. If the result is that Floridians enshrine in the state constitution a right to abortion through “viability,” or about 24 weeks, that law will have been a strategic mistake by abortion foes.

One caveat is that constitutional amendments in Florida need 60% to pass. Meantime, GOP candidates on the ballot might be a house divided. Sen. Rick Scott has defended the six-week limit and said he’d have signed it. Mr. Trump last year called the law “a terrible mistake.” He has teased that he’ll back a 15-week national standard, and he’ll be pressed to clarify his position.

Settling these questions might take a couple of election cycles, but Justice Alito never said otherwise. The Supreme Court gave abortion policy back to the electorate, which is better than having it dictated by judges. Now the people are deciding. We don’t doubt the sincerity of Republicans who vote for six-week laws like Florida’s. But if they haven’t persuaded the public, they might be courting political defeat.