In Florida, the future of abortion really lies in hands of the state Supreme Court

Challenge to FL’s 15-week abortion ban is already pending in trial court

By: - June 24, 2022 1:19 pm

Abortion rights protesters gather in front of the Florida Supreme Court on May 3, 2022. Credit: Danielle J. Brown

Now that the U.S. Supreme Court has had its say on abortion access, activists and political figures on both sides of that issue are turning their eyes to the Florida Supreme Court.

That’s because of a 1989 ruling by the court establishing that the right to privacy contained in the Florida Constitution includes the right to make decisions about whether to continue a pregnancy — explicitly, and to a broader extent than the Roe v. Wade standard struck down by the robes in Washington.

Now the court, rendered solidly conservative by Gov. Ron DeSantis’ appointments, may be poised to overrule that 30-year-plus-old precedent. The vehicle for the justices to do that likely will be Planned Parenthood of South and Central Florida v. Florida, a lawsuit challenging the state’s new 15-week abortion ban, filed on June 1.

The case is pending before a circuit judge in Leon County. Meanwhile, the 15-week ban — passed by the Legislature earlier this year in anticipation of the ruling handed down in Washington on Friday — is set to take effect in exactly one week, on July 1.

The ACLU of Florida, one of the forces behind that lawsuit, is not necessarily counting on the justices to sustain their precedent. At least, judging by a written statement issued for Amy Turkel, interim executive director of the organization.

“The courts are letting anti-abortion politicians attack our fundamental rights, but they don’t get the final say — we do,” Turkel said.

“While we will do everything in our power to block these bans in the courts, we’re not stopping there. We are mobilizing people in the streets and taking this fight to the ballot box to hold politicians accountable. Together we can ensure we keep the power to make the best decisions for ourselves and our families.”

Special session?

Meanwhile, a leading anti-abortion group is urging the Republican governor and Republican-dominated Legislature to seize the moment. In a written statement, Andrew Shirvell, executive director of Florida Voice for the Unborn, urged a special session of the Legislature “to consider a complete statutory ban on all abortions in Florida.”

“Gov. DeSantis and the Legislature cannot continue to be held hostage by what our state courts may or may not do,” Shirvell said.

“The Florida Supreme Court — like the U.S. Supreme Court — has moved in a much more conservative direction recently and is likely to eventually correct its misinterpretation of the Florida Constitution so that Florida can thoroughly prohibit abortion. NOW [emphasis in the original] is the time for Gov. DeSantis and the Legislature to act so that a full statutory ban is in place while any litigation in the state courts plays out,” he said.

Gov. Ron DeSantis at a news conference Jan. 5, 2022.

DeSantis spent Friday morning attending a ceremony marking the one-year anniversary of the Champlain Towers South condominium building collapse in Surfside, which killed 98 people. First Lady Jill Biden was also on hand.

Later, he issued a statement via Twitter.

“The prayers of millions have been answered. For nearly 50 years, the U.S. Supreme Court has prohibited virtually any meaningful pro-life protection, but this was not grounded in the text, history, or structure of the Constitution. By properly interpreting the Constitution, the Dobbs majority has restored the people’s role in our republic and a sense that every life counts,” he said.

“Florida will continue to defend its recently enacted pro-life reforms against state court challenges, will work to extend pro-life protections, and will stand for life by promoting adoption, foster care, and child welfare,” he concluded.

House Speaker Chris Sprowls issued a statement acknowledging the role Florida’s courts now will play.

“The Florida House agrees with the Supreme Court that abortion is an issue that should be left to the states. I have been and will always continue to be unmovable on the need to protect unborn life,” he said, calling HB 5, the 15-week ban, “the most impactful legislation signed into law in our state’s history to protect babies starting at 15 weeks’ gestation and reduce infant mortality.”

He added: “ In Florida, our attention must now shift to the state courts and the Florida Supreme Court as they evaluate HB 5 and determine its constitutionality here — an additional hurdle present in our state.”

Sponsor speaks

“In reviewing HB 5, the Florida Supreme Court has an opportunity to apply a textual interpretation of Florida’s privacy clause, so we can act upon this decision and do even more to protect the preborn,” said Erin Grall, the Republican House cosponsor of the bill. She represents Indian River and part of St. Lucie counties.

Florida politicians comment

“As an adopted child myself, I am grateful for this decision. The court is finally righting a grievous wrong,” said Senate President Wilton Simpson, whose district includes Citrus, Hernando, and part of Pasco counties.

“I particularly like that the court mentions, in outlining views of pro-life Americans, ‘a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.’ That is certainly the case here in Florida. Florida is a state that values life. I have been proud to support pro-life, pro-family policies that not only protect innocent, unborn babies, but also support children, parents, and other caring adults willing to raise a child who is not their own,” he said.

U.S. Sen. Rick Scott commented on Twitter:

“Today’s historic decision made by the court on #Dobbs correctly confirms that there is no constitutional right to take a child’s life. I firmly believe that life begins at conception and that every child deserves to be welcomed into this world with open arms,” he wrote.

‘I am furious’

U.S. Rep. Val Demings of Central Florida, challenging Republican Marco Rubio for his U.S. Senate seat this year, urged passage of federal legislation protecting abortion rights.

“As a woman, a mother, a woman of faith, and a former law enforcement officer, I am furious and I am disappointed but I have not despaired. I am ready to fight. We won’t go back,” Demings said.

U.S. Rep. Val Demings interviews with CBS. Source: Screenshot/CBS

“We must work relentlessly to preserve our right to choose and our right to privacy. We must protect Roe v. Wade in federal law. We cannot go back to a time when women were treated as second class citizens who don’t have control over our own bodies.”

Rubio himself issued a press release using the ruling to promote his own legislation that would expand the child tax credit and allow new parents to dip into their Social Security accounts to finance parental leave.

“Today’s decision by the Supreme Court to allow states to regulate abortion was right constitutionally and morally. For nearly half a century, a nation founded on God-given rights denied those rights to its most vulnerable citizens and more than 63 million Americans never got the chance to pursue their dreams,” the senator said in a written statement.

“But we must not only continue to take steps to protect the unborn, we must also do more to support mothers and their babies. I will soon introduce a bill to ensure we do everything we can to give every child the opportunity to fully access the promise of America,” he continued.

Political leverage

Florida Democratic Party chief Manny Diaz sought to leverage the ruling against Republicans in this year’s elections.

“Florida Republicans Marco Rubio and Ron DeSantis are focused on banning abortion and basic freedoms when they should be trying to improve our economy, ensure that every American can find a good paying job, and make health care more affordable. They support draconian bans on reproductive health care without exceptions when a woman’s life is in danger or for victims of rape and incest,” Diaz said.

“Today’s decision gives them the power to compel their dangerous political agenda at every level, including a possible ban on the use of contraceptives.”

Agriculture Commissioner Nikki Fried speaking in the Florida Cabinet room on. Sept. 1, 2021. Credit: Danielle J. Brown

Nikki Fried, the Democratic commissioner of Agriculture and Consumer Services running in her party’s gubernatorial primary, also looked to the elections — and she didn’t shrink from an attack on her opponent in that race, U.S. Rep. Charlie Crist.

“If you are angry, stay angry. Stay angry at those like Ron DeSantis, who are celebrating today. Stay angry at lifelong politicians like Charlie Crist, who still describe themselves as ‘pro-life.’ Stay mad at leaders who won’t stand up for you,” Fried said.

“And stand with me. This is a fight I am willing to take all the way to the governor’s office. In fact, it’s one I’ve been taking on my whole life. “I want every woman in Florida to know this: When I am the first woman governor of Florida, you’ll have an ally — not an enemy — in the governor’s office.”

‘Horrific win’

“Though this is a major loss for gender equity and a horrific win for extreme conservatism we must remember that here in Florida, abortion is still legal,” said Democratic House member Anna Eskamani of Orange County.

State Rep. Anna Eskamani. Credit: Colin Hackley

“We must remember that Floridians overwhelmingly want abortion to remain legal, and generations before us have fought tirelessly to gain and protect the rights we have today. We must take these fights with us into the upcoming midterm elections while we continue to support local abortion providers and funds.”

Ruth’s List Florida, which promotes Democratic women as political candidates, issued a fundraising appeal.

“The future of reproductive rights in this country now lies firmly in the hands of state and local officials,” CEO Lucy Sedgwick wrote.

“We can no longer rely on the courts to protect our rights, so it’s up to us to elect leaders who will. Change may not happen overnight, but Ruth’s List is in it for the long haul. We won’t stop until we elect a majority of leaders in this state who truly represent the will of the people.”

Note: This story has been updated to include the governor’s comments.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.