Seven justices, two cases: How the future of abortion in Florida will be determined

By Grace Panetta, Mel Leonor Barclay and Shefali Luthra | 7 February 2024
The 19th

(Credit: YouTube / screengrab)

In Florida, the fate of abortion access lies in the hands of seven state Supreme Court justices.

They’re deciding two cases: One, which the court heard Wednesday, will determine whether Floridians can vote directly this November on a measure that would explicitly protect the right to an abortion in their state constitution.

The other — a challenge to the legality of Florida’s current 15-week ban — could lead the state to enforce an even stricter six-week cutoff, a law passed in 2023 that has not yet taken effect.

The arguments Wednesday highlighted how the availability of abortion in Florida — and the South — now almost entirely rests with the state’s high court, a seven-member panel dominated by conservatives and heavily shaped by Republican Gov. Ron DeSantis.

The court has yet to rule on the case of the 15-week abortion ban, which was argued in September; until it is decided, the court has said that Florida can continue to enforce its 15-week cutoff.

Floridians Protecting Freedom, a coalition of reproductive rights groups, has already gathered the required number of signatures to put the abortion measure on the ballot. It would establish a right to abortion to the point of fetal viability, which is determined by physicians but is usually around 22 to 25 weeks of pregnancy.

“Both of these cases are in the Florida Supreme Court’s hands, and really, the question that’s before the court is whether or not politicians should be making these decisions,” said Sara Latshaw, deputy political director at the ACLU of Florida, who was part of the team that helped craft the ballot measure.

“The amendment stands on its own. And I think, regardless of where things go with the 15-week decision, it is still important that the voters get a chance to decide how Florida handles politicians interfering in abortion.”

Of the states with direct democracy, Florida is the only state where the attorney general is required to get an opinion from the state supreme court on whether the language of a proposed measure is concise, clear and addresses a single subject. The court is not supposed to rule on the merits of a measure. Leading up to the hearing, Moody argued the word “viability” in the measure’s text was vague and would enable providers to regulate themselves.

In the courtroom Wednesday, Nathan Forrester, who argued on behalf of the state attorney general’s office, said that the language in the ballot measure has an “enormously wide range of meanings” and that voters may not understand its implications.

The lead attorney for the referendum campaign, Courtney Brewer, argued that the summary is clear, including when it seeks to limit restrictions on abortions before “viability or when necessary to protect the patient’s health.”

“There is no question that voters understand what viability means in the abortion context. This is a term and its meaning that have become a part of the cultural fabric of our nation,” she said.

The justices have until April 1 to issue a ruling to approve or reject the language in the measure, at which point, the effort to reach the 60 percent threshold in November will either kick off in earnest or come to an end.

During questioning, Chief Justice Carlos G. Muñiz made it clear he did not believe the language in the ballot measure was deceptive, though he said interpreting the limits of the amendment will be up to the courts if it passes.

“There’s going to be debates about what are the gaps and what can the legislature do, but it’s pretty obvious that this is a pretty aggressive, comprehensive approach to dealing with this issue,” he said, referring to abortion rights.

“The people of Florida aren’t stupid. They can figure this out.”

If enacted, the constitutional amendment would effectively reverse Florida’s 15-week abortion ban as well as the pending six-week cutoff.

One case may impact the other: The court’s chief justice said Wednesday that the court hasn’t taken a position on whether the constitution protects “an unborn child at any stage of pregnancy.”

Without that ruling, Muñiz said, the ultimate effect of the proposed constitutional amendment won’t be clear to voters, and “might have implications for what we need to do here.”

“If sort of the bare minimum is that people need to be on notice as to what does the constitution do now and what are you proposing to change, can we evaluate that without taking a position on whether the current constitution legally — not morally or politically or whatever — but legally speaks to this issue of any kind of rights for the unborn?”

In the decade before DeSantis took office, the state Supreme Court rarely rejected proposed measures. But since 2019, when his appointments shifted the court’s balance, the court has rejected half of the eight measures before it, a Bloomberg Law analysis found.

National advocates are closely watching the outcome in Florida, the first state where advocates have submitted all their signatures to get abortion constitutional amendments on the 2024 ballot. That puts Florida at a “really important place in the election life cycle,” said Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, a clearinghouse of resources and support for progressive ballot initiative campaigns.

“Florida plays an important role this year in foreshadowing what other states may encounter as they move through the qualification process and get onto the ballot,” she said. “We’ll be able to see what tricks and tactics the opposition will be using to undermine the will of the people.”

Advocates in Florida already face a uniquely difficult path to passing and enforcing citizen-led initiatives. When initiatives do get on the ballot, they require a 60 percent supermajority to pass. Florida’s Republican lawmakers also have a history of watering down citizen-led constitutional amendments, including substantially weakening a landmark amendment passed in 2018 restoring voting rights to over a million Floridians with felony convictions.

Kelly Hall, executive director of the Fairness Project, which supports progressive ballot measure campaigns around the country, said Florida is “a poster child of a very unfriendly state” for citizen-led initiatives. Steep barriers to getting on the ballot, she said, factor into how her organization decides whether or not to invest in ballot measure campaigns. The group has not yet provided support to the Florida ballot measure effort.

“This is not to say that any of us are rooting against that ballot measure, that we think it should lose on its merits, it is absolutely not that,” she said. “It is that we are all acknowledging that how these rights get whittled away matter, and that is what has happened in Florida.”

While the referendum could have wide implications for abortion access in the state, the other major abortion-related case on the Florida Supreme Court’s docket could have a more immediate effect.

The court heard arguments in early September on a challenge to the state’s 15-week abortion ban brought by abortion providers. The providers argue that a 1989 ruling from the court — which declared that the state constitution’s right to privacy protected abortion — makes the state’s abortion ban unconstitutional.

Abortion providers in the state have been anxiously waiting for clarity about whether they will retain the right to provide abortions even up to 15 weeks of pregnancy, a cutoff that mirrors the national 15-week proposal floated by Republican politicians. Doctors generally note that there is no medical reason to end abortion access at that point.

The high court has not indicated when it will rule on that case. If the 15-week law is upheld — as many providers and local analysts expect – the six-week ban would take effect 30 days later.

“It makes it very, very challenging to be able to provide care,” said Dr. Shelly Tien, a maternal-fetal medicine physician who provides abortions in several states, including Florida. “You say to a patient, ‘Right now we can provide care up until this point in a pregnancy, but any day now it could change, and that change is in effect within 30 days.’ It’s a barrier.”

Florida’s 15-week law means the state is currently the second most permissive state for abortion in the South, behind only Virginia, which allows abortion up until fetal viability. As a result, it’s become a regional destination for people seeking abortions. In 2023, more than 7,000 people traveled to Florida for an abortion, per state data — a 46 percent increase from the previous two years.

“It’s tremendous. There’s no question that most of the abortion-restrictive states are in the South and Southeast – so you have hundreds and hundreds of miles of patients that unless they have the resources, can’t necessarily travel,” Tien said. “These patients are forced to continue pregnancies against their will.”

If the court sides with the state to strike down the language, the campaign to put this constitutional amendment on Florida’s 2024 ballot will come to an end, meaning nearly a million signed petitions and months of organizing are cast aside.

“The issue of abortion will be central to the November election because people in Florida care about limiting government interference in abortion,” Latshaw said. “So, whether or not this amendment is on the ballot, abortion will be on the ballot in November.”

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