What would a Texas-style abortion ban mean in Florida? An FSU law professor explains
We spoke with Mary Ziegler, author of "Abortion and the Law in America: Roe v. Wade to the Present," about the implications of a bill proposed for the next legislative session.
A version of the Texas law banning abortions after about six weeks of pregnancy has been introduced in Florida ahead of the next legislative session. Republican state Rep. Webster Barnaby filed the 40-page proposal — called the "Florida Heartbeat Act” last month.
WUSF's Cathy Carter spoke with Mary Ziegler, a law professor at Florida State University and author of "Abortion and the Law in America: Roe v. Wade to the Present," about the implications.
What does this legislation propose?
Florida's law is kind of a carbon copy of what we saw in Texas. And that means it outsources enforcement to private individuals. It allows them to sue doctors and people who "aid or abet" or basically help someone else get an abortion for at least $10,000. It's designed to make it hard to challenge in court, which would in theory, shield Florida lawmakers from having to pay the lawyer’s fees of successful abortion rights organizations.
Gov. Ron DeSantis has said he is against abortion. But so far, he's been noncommittal about the legislation that's been filed in Tallahassee. So where does he stand on this issue?
He said he's going to look into it. But I think he's been trying to avoid staking out a clear position on the bill. And the reasons for that are not hard to imagine. On the one hand, Floridians tend to be more divided on abortion than Texans or the those in states like Mississippi that have more restrictions on abortion than we see here in Florida. So, the potential backlash in Florida to a bill like this might be greater. On the other hand, Gov. DeSantis, wants to please his base, and he may be doing that with an eye on not just seeking office in Florida again, but potentially to seeking higher office down the road.
Abortion has been legal at the federal level for many decades, but pro-life advocates have been working on the state level to restrict abortion access for some time now. Are they hoping these recent initiatives will be a new path to overturning Roe v. Wade?
I think that the laws you see now, the sort of private enforcement laws, are not really about bringing down Roe v. Wade. They're more about putting abortion doctors out of business. There's lots of historical evidence that when abortion providers are forced to close, they don't reopen even if courts later hold up the laws forcing them to close were unconstitutional. So, there are different laws that are designed to get the court to reverse Roe v Wade and open the door to bans. But laws like the one we see in Florida are much more about deterring doctors from performing abortions, and encouraging them to close their offices, such that whatever the law turns out to be later, they never open their doors again.
Since the passage of Roe v. Wade in 1973, the makeup of courts across the land has changed. What is the significance of a conservative majority when it comes to reproductive rights?
Yeah, it's pretty significant because it's worth saying that the Supreme Court doesn't have to hear many, or any appeals. Its jurisdiction is discretionary. And so that means that for many laws, and many petitioners, the federal circuit courts like the 11th circuit in Florida, or the 5th Circuit in Texas, are the last stop, and so that means that for a lot of people, what the law means will be determined by circuit justices and in certain circuits where those judges are conservative, that has a definite impact.
And it's not just states that are looking to restrict access to abortions. Here in Florida, Manatee County Commissioners sent a letter to the governor and to Attorney General Ashley Moody, seeking their guidance on how they might implement a ban on the county level.
So, this grows out of again, something from Texas. This is very much not a homegrown Florida thing; This is an import. But in Texas, there's what's been called the sanctuary city, or county, for the unborn movement, which essentially is sort of a miniature version of what you see happening in Texas at the state level, where cities or counties are banning abortion, and then instead of creating criminal penalties, they're seeing that private citizens can do the enforcement and again, that's local officials shielding themselves from potential legal consequences. I think it's possible that that may work in the same way that it's worked at the state level, but it's hard to see that working out in the long term, right? So, there'll be nothing stopping California from saying, OK, guess what, you have a right to bear arms, but anyone can sue you for $10,000 for having a handgun in your home. It's hard to see how we have any constitutional rights. So, I think long term, this is a kind of solution that both Republicans and Democrats should be skeptical about using.
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