Florida Supreme Court agrees to decide the fate of state’s 15-week abortion ban

But the law remains in effect pending a ruling by the state’s highest court

By: - January 23, 2023 8:57 pm

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

Florida’s 15-week abortion ban is now in the hands of the Florida Supreme Court, which must decide whether to overrule its own longstanding precedent protecting reproductive freedom under the state constitution’s privacy language.

Abortion providers, including Florida Planned Parenthood affiliates, wanted the state’s high court to expedite deliberations over the law and to block its enforcement in the meantime.

The justices accepted jurisdiction, but in a terse order refused to block the law’s enforcement.

“While we are relieved that the Florida Supreme Court will hear our challenge to the state’s cruel 15-week abortion ban, we are disappointed that it has allowed the ban to remain in effect,” Alexandra Mandado, president and CEO of Planned Parenthood of South, East, and North Florida, and Stephanie Fraim, president and CEO of Planned Parenthood of Southwest and Central Florida, said in a joint statement.

“Because of this decision, Floridians and their families continue to be denied their right to determine what is best for their own bodies and lives. We are hopeful that relief will come swiftly and that Florida’s abortion providers — including the state’s two Planned Parenthood affiliates — will be able to resume offering the compassionate care our patients need. Until then, we will do everything in our power to ensure that patients have the resources to access care.”

“We are hopeful that the court will act quickly and restore Floridians’ right to abortion and bodily autonomy,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America.

“Each day that the ban remains in effect, people across the state are deprived of the ability to determine what is best for their own lives and bodies. The deprivation of rights is compounded for Black and Latino communities; people with low incomes; and youth, who already experience higher social and economic barriers to accessing abortion. We will not stop fighting until the state Supreme Court permanently blocks the 15-week abortion ban,” Johnson said.

Trial court ruling

A state trial judge ruled that the law, HB 5, passed last March and signed by Gov. Ron DeSantis on April 14, 2022, violated a 1980 state constitutional amendment establishing a right to privacy. Floridians voted at that time to enshrine that right, but more than 40 years later, the privacy language could be swept away — or not.

Florida appellate procedures entitled the state to enforce the law until the courts ruled on its constitutionality, which the Supreme Court has now agreed to do.

Circuit Judge John Cooper of Leon County cited a Supreme Court ruling in 1989 that that right was broad enough to cover access to abortion. But that was before DeSantis took office in 2019 and appointed enough justices to tilt the court hard to the right. Since then, the justices have reversed a number of precedents.

In these proceedings, a lower appellate court ruled that the state could enforce the law pending the ultimate outcome, and now the Supreme Court has done the same.

It did so over a dissent by Justice Jorge Labarga, the last remaining moderate on the high court.

“In view of this court’s longstanding precedent, I conclude that the petitioners have satisfied the burden required for this court to lift the automatic stay of the temporary injunction. Therefore, I would grant the petitioners’ motion,” Labarga wrote.

The development was not quite a surprise — the court issued an order to the same effect in September but then withdrew it, blaming an error by the court’s clerk’s office in releasing the document. In the meantime, last year’s midterm elections returned DeSantis to office with a significant majority, plus gave Republicans supermajorities in the state House and Senate.

The law bans abortion after 15 weeks’ gestation unless necessary to protect the health of the pregnant person or in case of fatal fetal abnormality, as attested to by two doctors, but provides no exceptions for rape or incest.

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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.