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Florida Supreme Court approves ballot initiative on enshrining abortion rights in state constitution

The judges also ratified the constitutionality of a 2022 law that limited pregnancy terminations to 15 weeks, which paves the way for a new, six-week ban to take effect in 30 days

Aborto en Florida
A protest in support of reproductive rights in Miami (Florida), in a file photo.Marco Bello (REUTERS)
Miguel Jiménez

Two separate rulings handed down on Monday by the Florida Supreme Court will mark the future of abortion access in the state. In a 98-page ruling, the conservative-majority court ratified the constitutionality of a 2022 law that limited abortion to 15 weeks, paving the way for a new, six-week ban enacted last year to take effect in 30 days. At the same time, however, in a separate 81-page ruling, the judges backed a ballot initiative that gives voters the chance to decide if abortion rights should be enshrined in the state constitution, a decision of great significance. Florida is home to around 22 million people.

The Republican governor of Florida, Ron DeSantis, has been pushing a conservative agenda that includes very strict limits on abortion. Planned Parenthood, the most powerful reproductive rights organization in the country, appealed a 2022 law passed by the governor that banned abortion after 15 weeks, except in cases of fetal malformation or where the mother’s life was at risk. This legislation, similar to that of several European countries, is considered very restrictive in the United States.

In its appeal, Planned Parenthood pointed out that under Florida’s Constitution, “every natural person has the right to be left alone and free from governmental intrusion into his private life,” and argued that the 2022 law violated this right of privacy.

But in a 6-1 ruling, the judges rejected that argument. “The parties have presented thoughtful arguments as to the scope of this provision, which has traditionally been referred to as the ‘Privacy Clause.’ Those legal arguments on the Privacy Clause’s meaning are, in our view, distinct from the serious moral, ethical, and policy issues that are implicated in the subject matter of this case. Our analysis focuses on the Privacy Clause’s text, its context, and the historical evidence surrounding its adoption. After considering each of these sources and consistent with longstanding principles of judicial deference to legislative enactments, we conclude there is no basis under the Privacy Clause to invalidate the statute,” the sentence states.

“In doing so, we recede from our prior decisions in which — relying on reasoning the U.S. Supreme Court has rejected — we held that the Privacy Clause guaranteed the right to receive an abortion through the end of the second trimester,” it adds.

Monday’s ruling referenced the Supreme Court decision that overturned the federal right to abortion in 2022, and gave states the power to legislate on the issue. State judges are also reinterpreting the Florida Constitution, according to the Supreme Court’s latest judgments.

The ruling upholds the law banning abortion after 15 weeks, but in practice, it also triggers Florida’s so-called heartbeat law, which limits the period to six weeks, when many women are not yet aware they are pregnant, according to reproductive rights organizations. The vast majority of abortions are performed before 15 weeks.

The six-week ban, passed by the Legislature in 2023, was written so that it would not take effect until one month after one of the four following scenarios: a decision by the Florida Supreme Court holding that Florida’s constitutional right to privacy does not include the right to abortion; a decision by the court allowing the 15-week ban to remain in effect; a decision that changes case law from the Florida court; or an amendment to the Florida Constitution clarifying that Florida’s constitutional right to privacy does not include the right to an abortion. “Today’s decision implicates three of these four events, meaning that the Act’s six-week ban will take effect in 30 days,” the dissenting opinion states.

November ballot initiative

The judges, however, issued another ruling on Monday. In a 4-3 decision, the court approved a ballot initiative that would give voters at the presidential and legislative elections next November the chance to enshrine the right to abortion in the state constitution. The four male judges voted in favor, while the three female judges voted against it.

The proposal to amend the constitution is called “Amendment to Limit Government Interference with Abortion.” It 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. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

In this case, the court did not have to rule on the substance of the measures, but rather whether the ballot initiative met clarity requirements and did not cover more than one subject.

The ruling rejected Republican Attorney General Ashley Moody’s argument that the proposed amendment is misleading. In a brief, she argued that the “amendment has a much broader meaning than voters would ever have thought,” claiming that the term “viability” was open to interpretation as it could refer to the mother’s mental health, a point that its proponents denied.

The judges also rejected the argument that the ballot initiative violates the single-subject requirement by combining two separate categories of abortion — abortion before viability of the fetus and abortion based on a healthcare provider’s authority. Critics of the proposed amendment argued that some voters might approve allowing abortions to protect the mother’s health but would refuse to allow unrestricted abortions before viability of the fetus.

But the ruling states that under both Florida and federal law, “the subject of abortion has historically involved two major interconnected matters: the viability of the fetus and the health of the mother.” “The mere fact that electors might not agree with the entirety of the amendment does not render it violative of the single-subject requirement,” it adds.

Republican Gov. Ron DeSantis’ office issued a statement criticizing the ruling and supporting “the three women on the Court who got it right.” He appointed all three women to the court and two of the four men. “This amendment is misleading and will confuse voters,” said the statement, cited by AP. “The language hides the amendment’s true purpose of mandating that abortions be permitted up to the time of birth.”

Florida has become a state with a clear Republican majority. Even so, when the right to abortion has been put to a referendum, the majority of citizens have voted in its favor, in both conservative and progressive states. Democrats are counting on abortion rights as a key issue to mobilize voters. But winning the Republican Florida is still shaping up to be a very complicated task.

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