What would a post-Roe v. Wade Florida look like? We answer 5 vital questions.

“Florida is kind of the ultimate swing state and its abortion politics reflect that,” one law professor told the Times.
The Florida Supreme Court
The Florida Supreme Court
Published July 9, 2018|Updated July 10, 2018

The confirmation of President Donald Trump's nominee for justice to the United States Supreme Court will dominate politics for the coming weeks.

Just how bad that appointment could be for abortion rights advocates is unclear. But on the 2016 campaign trail, then-candidate Trump promised to nominate "pro-life" justices to the Supreme Court in order to overturn the landmark 1973 abortion rights case, Roe v. Wade, which legalized abortion in all fifty states.

Here are five questions you need answered about a possible post-Roe v. Wade Florida.

1. How close has Florida come to banning abortion?

For a state with a legislature that's been dominated by Republicans for two decades, Florida has not come close to banning abortion. Unlike a state like Texas, which routinely passes restrictive abortion laws, it's relatively easy to get an abortion in Florida.

"There's lots of signaling devices that legislatures have that basically say, 'We're going to comply with the law and do as much as we can to limit abortion,'" said Mary Ziegler, a professor at Florida State University College of Law. "Florida has never gone that route."

However, in recent sessions, lawmakers have passed controversial abortion regulations — some of which have drawn legal challenges. A 2015 bill that mandated a 24-hour waiting period before getting an abortion was permanently struck down by a Florida judge earlier this year. (The state is appealing that decision.) And a 2016 bill that cut off non-abortion funding for abortion providers was also held up by the courts.

Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, said that the Florida Legislature has waged an "all-out assault" on abortion rights during Gov. Rick Scott's tenure, which started in 2011.

But polling has shown that abortion isn't the issue in Florida that it is in other states with conservative legislatures. A 2014 survey found that 56 percent of Florida adults think abortion should be legal in most or all cases, compared to 39 percent who think it should be illegal in most or all cases. In Alabama, those percentages were essentially reversed.

"Florida is kind of the ultimate swing state and its abortion politics reflect that," Ziegler said.

2. Where would key 2018 candidates land on abortion legislation in a post-Roe v. Wade Florida?

The abortion stances of the Democratic and Republican candidates for governor fall along predictable lines. The Democrats — Gwen Graham, Andrew Gillum, Chris King, Philip Levine and Jeff Greene — oppose abortion restrictions. The Republicans, Adam Putnam and Ron DeSantis, have said they would sign a "heartbeat bill" that would prohibit abortions performed after a fetal heartbeat can be detected.

Read more: Florida's only female candidate for governor seizes on fear of Roe v. Wade overturn

Two Tampa Bay-area races could also help determine the future of abortion in Florida. The Florida Senate seat currently held by Republican Dana Young and the one formerly held by Republican Jack Latvala are up for grabs in 2018. If Democrats nab both of them, they'd have 18 Senate seats — enough to make most legislative debates interesting.

Sen. Young, R-Tampa, didn't respond to requests for comment. But Young voted for the 24 hour waiting period bill when she was a member of the Florida House in 2015.

Rep. Janet Cruz, D-Tampa, who's challenging Young for her Senate seat, told the Orlando Sentinel at the time of that vote that she had "no business injecting [herself] into a woman's personal medical decisions."

The frontrunner in the Republican primary for Latvala's old seat, former state Rep. Ed Hooper, said he is pro-life but likely wouldn't vote for a ban on abortion in all cases.

"You're asking me would I support a total, absolute ban, bar none? No," Hooper said, noting he'd support allowing for abortions in the case of rape or incest.

Hooper will face another former state representative, Democrat Amanda Murphy, in the general election if he beats his primary opponent, Leo Karruli.

When asked whether she would vote for a bill that banned abortion, Murphy said, "No."

"We cannot go backwards," Muprhy added.

3. Could the Florida Legislature legally pass an abortion ban?

The Florida Constitution makes this question  more complex than it might be in other states. Article 1, section 23 of the Constitution allows for every Floridian to have "the right to be let alone and free from governmental intrusion into the person's private life." That privacy clause has been interpreted to enshrine the logic at the heart of Roe v. Wade: that abortion rights are guaranteed because the right to privacy is implied in some of the U.S. Constitution's amendments.

If the Florida Legislature passed an abortion ban, it would likely run into legal trouble at the state Supreme Court level, Ziegler, the law professor, said.

"Although obviously the privacy clause in the [Florida] Constitution does not say anything about abortion, it's consistently been applied that way," Ziegler told the Times.

4. Isn't there more than one way to interpret the state Constitution's privacy clause?

Yes. Many conservative legal analysts believe abortion is not a privacy issue unless the state Constitution explicitly says so.

John Stemberger, a conservative lawyer who sat on the 2017-2018 Florida Constitution Revision Commission, said the privacy clause was originally adopted by voters in 1980 who had little idea how the Florida Supreme Court would later interpret it.

"The history, the legislative intent and the intent of the people who adopted it never envisioned it to be used for abortion rights, and in fact if it was, it would have never passed," Stemberger said.

Stemberger added that he hopes the next appointees to the Florida Supreme Court will apply a conservative reading to the state Constitution.

The timing couldn't be better for an anti-abortion governor to make his mark on the court. Three of the Florida Supreme Court's seven justices, Barbara J. Pariente, R. Fred Lewis and Peggy A. Quince, have to retire Jan. 8, 2019 because of Florida's mandatory retirement age. And all three of them were appointed by Democrat Lawton Chiles in the 1990s.

5. Who gets to appoint the next three Florida Supreme Court justices?

Governor Rick Scott has said he believes he does. Scott's term technically ends Jan. 8, 2019, and he wants to appoint three new justices on his way out of office.

"As Governor, Governor Scott has the authority to appoint judges," John Tupps, a Scott spokesman, wrote in an emailed statement. "He will continue to exercise that authority for as long as he's Governor."

It's unclear whether he can. The terms of Pariente, Lewis and Quince expire that same day, and Gov. Scott's appointment plan has already drawn one (unsuccessful) legal challenge.

Should Scott win his 2018 race against incumbent Democratic U.S. Senator Bill Nelson, the timing becomes even more interesting. In that case, Scott would likely be sworn into the Senate a few days before the three justices retire — leaving their appointment up to Lieutenant Gov. Carlos Lopez-Cantera.

When asked whether Scott would coordinate with his lieutenant in filling the vacancies, Tupps wouldn't say.

"We will pass on commenting on hypothetical situations," Tupps wrote.

Read more: Who gets to appoint 3 new Florida justices, Rick Scott or the next governor?