The Florida Supreme Court building. Credit: Michael Moline
The Florida Supreme Court is drawing nearer to deciding whether the Florida Constitution protects the right to abortion. If the justices conclude it does not, they could boost Gov. Ron DeSantis’ standing among Republican presidential primary voters.
Or not. Political observers tend to agree that a ruling along those lines could alienate the governor from the broader electorate should he make it to the 2024 general election. But even large numbers of Republicans think DeSantis went too far in signing Florida’s ban on the procedure after six weeks’ gestation.
DeSantis seems to understand his dilemma. He hasn’t been emphasizing abortion politics as he campaigns in early contest states like Iowa, New Hampshire, and soon in South Carolina and Texas. The topic certainly appears to have spooked some potential financial supporters, according to news accounts including this Washington Post report.
Here’s the evidence. In a University of North Florida poll released in March, 77% of the respondents opposed the six-week ban, including 62% of Republicans. And even in Florida’s highly accommodating Republican-dominated Legislature, seven Republicans voted against SB 300, enacting the ban, in the Florida House and two did the same in the state Senate.
Political analysts told the Phoenix earlier this year that they see the same dynamic in presidential swing states.
But DeSantis clearly has lashed himself to the anti-abortion crusade, for good or ill politically. And he isn’t known as one who makes political decisions without figuring the angles.
“Every step that he’s taken with respect to policy, really since the pandemic, has been to strengthen his perceived conservative bona fides,” Fentrice Driskell, leader of the Democrats in the state House, said in a telephone interview.
“He stated before this latest session got started that if a restriction beyond the 15-week ban crossed his desk he would be happy to sign it. To me, he was signaling to the Legislature, ‘Let’s do this,’ and this is what they did,” she said.
“DeSantis has been down in the polls to Trump. I think he needs this [an anti-abortion ruling] to help establish trust with the primary voters,” said Bob Jarvis, a constitutional law professor at Nova Southeastern Shepard Broad School of Law, of DeSantis’ abortion politics.
“It’s going to hurt him in the general, presumably, but he’s got to get to the general. You have to fight the battle in front of you rather than the battle that might come up down the road,” Jarvis said in a telephone interview.
“DeSantis doesn’t strike me as somebody who ever has doubts about what he has done or is doing or plans to do,” he added.
We asked the DeSantis presidential campaign whether the governor was eager for a quick ruling but have not yet received a reply.
Pending since January
The court agreed to decide the abortion case, which involves the 15-week ban DeSantis signed into law last year, in January. Since then, the justices have been accepting dozens of legal arguments for and against abortion rights from the plaintiffs in the case, including Planned Parenthood affiliates and other providers; the state; and dozens of amici, “friends of the court” that want to shape the ultimate ruling. The six-week ban goes into effect only if the justices uphold the 15-week ban.
The briefing stage of the case is over, court spokesman Paul Flemming confirmed. Now we wait for the court to decide whether to hear oral arguments in its Duval Street courthouse in Tallahassee or rely on the legal briefs alone.
If it seems the court is dragging its feet, that’s not necessarily so. Appellate rules build considerable time into cases — for example, the justices gave the plaintiffs 30 days to file their initial brief, the state the same time to reply, and so forth as the parties swapped arguments and amici weighed in.
“One could legitimately ask, ‘Why is the court taking so long?’ I’m sure there are a lot of people in the public who are going, ‘Why isn’t this a done deal already?’ And, obviously, it is moving as fast as appellate litigation moves — which is to say, not very fast at all,” Jarvis said.
However, “I think you now will see it speed up. We will certainly have a decision by the end of the year,” he said.
That would be before the Iowa GOP caucus and New Hampshire primary, both set for January 2024. That’s when we begin to find out whether his position helps or hurts DeSantis.
On its face, the case tests whether the 15-week abortion ban the Legislature adopted and DeSantis signed into law last year violates the Florida Constitution’s Privacy Clause, adopted by the voters in 1980. That clause reads:
“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”
In 1989, the court ruled, in a case called In re T.W., that that language is broad enough to protect the right to abortion. In a state court trial testing the 15-week ban, the judge ruled that he was bound by that precedent and struck down the ban. However, an intermediate appellate court and the Florida Supreme Court itself allowed the ban to take effect pending the outcome of the case.
The stakes rose even more when the Legislature enacted a six-week abortion ban earlier this year. That law is contingent on the court’s ruling in the Planned Parenthood litigation. Deciding for the state would require the court to overrule the longstanding T.W. precedent, but the existing court — bolstered by conservative DeSantis appointees — has proven more than willing to discard precedents.
Meredith Sasso, the governor’s latest justice, like others he has elevated, has ties to the Federalist Society for Law and Public Policy Studies, which grooms young lawyers for places in the conservative legal movement. The only exception now is Jorge Labarga, a Charlie Crist (then a Republican governor) appointee now established as the court’s only moderate (although even he has participated in a Federalist event).
‘Whip through precedent’
“This is not a court where you’re going to have a lot of different decisions that there’s going to be a lot of difficulty in reconciling. You’re going to have a unanimous decision or near-unanimous decision. Labarga is one justice who might vote against this. But otherwise, I think it’ll be a 6-1,” Jarvis said.
“And you have seen this court, in the death penalty cases — they’re willing to whip through precedent. That’s just not a barrier to this court.”
But Mac Stipanovich, a former Republican operative who reregistered with no party affiliation after Donald Trump took over the party, agreed that the justices would like to help the governor within the confines of their institutional boundaries, not to mention their prerogatives as a co-equal branch of government.
The court has told the governor “No” before, when it refused to seat trial judge Renatha Francis on the Supreme Court for him in 2020 because she hadn’t been a Florida Bar member for the required 10 years. DeSantis finally placed her on the court last year.
“I have no doubt that this court would like to further DeSantis’ ambitions. I just have a problem seeing them sitting around having a meeting, saying, ‘OK we’re going to delay this until after the South Carolina primary. I just find that hard to imagine,” Stipanovich told the Phoenix.
Winning the playoffs
He believes the stakes are clear for Florida’s governor.
“He’s made it pretty clear — I forget exactly how the phrases goes — but you can’t win the World Series without winning the playoffs. He’s clearly focused on the playoffs and he’ll worry about the general election when the time comes,” Stipanovich said.
“There’s nothing he’s doing — nothing — that you could even conceive would appeal to independents, the few moderate Republicans that may remain, certainly no Democrats, not even conservative Democrats. He’s just full bore going right-wing populist.”
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