Florida Supreme Court ruling enables adoption of six-week abortion ban on May 1

The Florida Supreme Court issued a ruling on Monday that clears the way for a state-wide ban on abortions after six weeks of pregnancy scheduled to take effect in 30 days. The court also ruled 4-3 to allow an abortion rights constitutional amendment to be put on the ballot in November.

Florida Supreme Court Building in Tallahassee, Florida, in 2011. [Photo by Bruin79 / CC BY-SA 3.0]

With this decision, Florida joins with thirteen other states in the South that have completely illegalized abortion or implemented similar bans that amount to a near-total prohibition of the procedure following the US Supreme Court’s ruling in 2022 which overturned the constitutional right.

The right-wing judicial and political figures who support laws making abortions illegal after six weeks are well-aware that most women do not know they are pregnant within this timeframe.

In its 6 to 1 decision, the Florida court upheld a state law banning most abortions after 15 weeks of pregnancy. Republican Governor Ron DeSantis signed the 15-week ban into law in April 2022, two months before the US Supreme Court decision, and it went into effect in July 2022.

The ruling is in response to a lawsuit filed by Planned Parenthood, the American Civil Liberties Union and others seeking to block the 15-week law on the grounds that Florida’s Constitution has a 40-year-old privacy clause that explicitly protected the right to abortion in the state and should remain in force.

Writing for the court majority, Justice Jamie R. Grosshans said, “Based on our analysis finding no clear right to abortion embodied within the Privacy Clause, Planned Parenthood cannot overcome the presumption of constitutionality and is unable to demonstrate beyond a reasonable doubt that the 15-week ban is unconstitutional.” 

The court accepted the state attorney’s arguments that the privacy clause was adopted by voter referendum in 1980 and, at the time, few people understood it had anything to do with abortion. The justices backed the claim that the clause was mainly meant to cover “informational privacy” such as personal records and not abortion.

Exposing the political nature of the ruling, the arguments accepted by the justices contradict a previous ruling by the Florida Supreme Court in 1989 that said the privacy clause does apply to abortion. It also overturns a 2012 rejection by the electorate of an amendment that would have exempted abortion from constitutional privacy protections.

Moving swiftly to implement extreme anti-abortion measures like many other states, the six-week ban was passed by the Florida Legislature one year ago and it was written with the expectation that the court would uphold the 15-week ban. The language of law sign by Governor DeSantis on April 14, 2023 states the six-week ban would go into effect 30 says after the court upheld the previous law. Four of the six justices on the court majority were appointed by DeSantis to the bench.

From Texas in the southwest to North Carolina in the mid-Atlantic, there are 14 contiguous states that have moved to cut off access to abortion in the 22 months since the US Supreme Court overturned its 1973 Roe v. Wade decision, which had guaranteed the fundamental democratic right for all women in the US.

Although Florida’s 15-week abortion ban has exceptions for circumstances where a mother’s life is threatened or if the fetus has a fatal abnormality, it does not allow for exceptions in cases of rape, incest or human trafficking. The six-week ban includes exceptions that the 15-week law leaves out.

Justice Jorge Labarga, the only Florida justice to oppose the majority, said the ruling will have far-reaching consequences. Labarga wrote, “The impact of today’s decision extends far beyond the 15-week ban at issue in this case. By operation of state statute, the majority’s decision will result in even more stringent abortion restrictions in this state.”

Historically, Florida has been a state in the South where women could go to have a legal abortion or avoid restrictions on the procedure that have been in place in other states. As the New York Times put it, the Florida Supreme Court decision has “cemented the rapid transformation of Florida, once a destination for women seeking abortions in the American South, into a place with restrictive policies akin to those in surrounding states.”

Even before Roe v Wade, Florida permitted abortions later in pregnancy than in neighboring states and allowed women to receive care without first scheduling a consultation at least 24 hours before the procedure.

According to a survey of abortion providers conducted for the Society of Family Planning, Florida had the second-largest increase in the total number of abortions provided since the Supreme Court overturned Roe. The data shows that more than 7,700 women from other states received abortions in Florida in 2023.

Now, beginning on May 1, women in Florida and across the southeastern US will have to travel as far away as Virginia or Washington D.C. for unrestricted access to abortion. The closest state that allows abortion within 15 weeks is North Carolina, which has a clinic in Charlotte that is anywhere from a six- to 11-hour drive from Florida.

Some experts are predicting that thousands of women will have to choose between unwanted pregnancies in the eight months between May 1 and January 2025 when and if the abortion amendment is passed in the November election and is added to the state constitution.

One organization, the Florida Access Network, is planning to switch from finding abortion care for women in the state to paying for their travel expenses to go out of state. Stephanie Loraine Pineiro, the group’s executive director, told the Associated Press, “People who can’t afford to travel, can’t afford to lose their jobs because they have to travel for abortion care, these are the people who are going to be forced to remain pregnant. The collateral damage is all of us.”

The second decision by the Florida Supreme Court allowing an abortion rights constitutional amendment on the November ballot is being seized upon by the Democrats as the answer to the fascist DeSantis and his backers in the Republican Party.

The amendment states, “no law 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.” The amendment maintains an exception that is already in the state constitution that parents must be notified before their minor children can get an abortion.

While public opinion polls show a majority of Floridians support the right to abortion in most cases, passage of the constitutional amendment requires 60 percent approval by voters. A recent summary of public polls conducted by the University of North Florida, Saint Leo University, Ipsos/Reuters and Quinnipiac University showed that 56 percent of those responding, “Believed abortion should be legal in most cases.”