Analysis: Amid a lawsuit over the 15-week ban, what's next for Florida abortion rights?
Nothing about abortion access has changed, and a U.S. Supreme Court ruling won’t mean an immediate shift.
The American Civil Liberties Union of Florida has filed a lawsuit to block a state law that bans most abortions after 15 weeks of pregnancy. The law is set to go into effect next month.
Meanwhile a ruling that could overturn Roe v. Wade is expected from the U.S. Supreme Court before the end of June. That's based on the draft of an opinion by Justice Samuel Alito that was leaked to Politico in May.
A privacy amendment in the Florida constitution offers more abortion protections than the U.S. Constitution, but some question whether that could change if the ACLU lawsuit heads to the state Supreme Court.
Right now, nothing about abortion access in Florida has changed and experts say even if the expected U.S. Supreme Court ruling comes, it won’t mean an immediate shift.
“The U.S. Supreme Court does not have the final say on Floridians’ right to control their bodies and their futures,” says Kara Gross, ACLU of Florida Legislative director and junior policy counselor.
What are Florida's privacy protections?
The U.S. Supreme Court ruling on Dobbs v. Jackson Women’s Health Organization, the Missippippi case the leaked opinion comes from, will not control what happens in Florida. That’s because overturning Roe v. Wade would hand abortion decisions to individual states, and Gross says Florida’s constitution has stronger privacy protections than the U.S. Constitution because of a privacy amendment passed by Floridians in 1980.
“And that doesn’t exist in the U.S. Constitution,” Gross says. “So, it’s a right of privacy and it is very broadly worded to say, 'every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.’ And so the question becomes, is this a governmental intrusion into a person’s private life?”
"The question becomes, is this a governmental intrusion into a person’s private life?”Kara Gross, ACLU of Florida
In 1989, the state Supreme Court found in a case known as In Re T.W., the privacy amendment extends to a person deciding whether the person wants to continue a pregnancy.
“The court specifically stated that, ‘We can conceive of few more personal and private decisions concerning one’s body than one can make in the course of a lifetime. Few decisions are more personal and intimate, more properly private, or more basic to an individual’s dignity and autonomy than a woman’s decision whether to end her pregnancy. A woman’s right to make that choice freely is fundamental.’ And so that is what our Florida Supreme Court has said in its interpretation of our explicit right to privacy,” Gross says.
Could the state Supreme Court change course from its previous findings?
Rep. Erin Grall, R-Vero Beach, argues “the court just sometimes gets it wrong.”
Grall sponsored the 15-week abortion bill this past session. It largely mirrors Dobbs. During committee discussions on the measure, Grall admitted her bill conflicted with the court’s previous finding.
“The court just sometimes gets it wrong.”Rep. Erin Grall, R-Vero Beach
“Yes, this is a conflict, and I would highlight that’s a conflict with the court interpretation," Grall said. "Because there is no specific conflict with the U.S. Constitution or the Florida constitution.”
But Grall said she doesn’t think the court’s previous interpretation was correct and thinks the more conservative justices on the current bench might overturn it.
“The way the Supreme Court has interpreted the privacy clause in the state of Florida puts us in a unique position where that will obviously be taken up again by the court should we pass this law, but the history of that privacy clause and the way it’s been interpreted also suggests that the court just got it wrong,” Grall said.
That bill has now been signed into law and is scheduled to go into effect July 1, but the ACLU says the goal of its lawsuit it to block that from happening. It's asking a judge to grant an injunction on the law before the ban goes into effect.
What voters, and precedent, have to say
Gross says if the lawsuit goes to the state high court, it would be a “radical departure” from decades of precedent for the justices to hand down a different interpretation of the privacy amendment.
And, she says, it would run afoul of the will of voters. She says Floridians voted for the constitutional amendment in 1980 and reaffirmed it in 2012, when they voted down another amendment aimed at narrowing the privacy amendment to exclude abortion.
"The public should be very concerned that both the federal and state rights to protect our ability to get an abortion are really just one court ruling away from being completely wiped off the map.”Kara Gross
Voters defeated that attempt, keeping the privacy amendment in place and confirming the idea that the privacy clause in the state constitution should extend to abortion.
Gross says she thinks the most important thing people who want to maintain abortion access should do is vote for leaders who will protect it. She says nothing about the state’s current abortion rights is certain.
“You know, I think that it’s important for everybody to realize that despite these additional safeguards for Floridians, the public should be very concerned that both the federal and state rights to protect our ability to get an abortion are really just one court ruling away from being completely wiped off the map.”
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