TALLAHASSEE — If the United States Supreme Court strikes down the precedent set by Roe v. Wade — and it’s looking likely that it will — the focus will turn to what states opt to do in response.
For the first time in nearly half a century, Florida lawmakers could seriously contemplate banning abortions outright. Legal experts say in a post-Roe v. Wade world, there’s legally very little standing in the way of that outcome.
But the day after Politico published a bombshell draft Supreme Court opinion that hinted Roe’s days could be numbered, Florida Republicans remained mum about the future.
At a Tuesday afternoon news conference in Fort Myers Beach, Gov. Ron DeSantis said he would have to wait and see what the Supreme Court’s final decision would be on Roe v. Wade. His office, normally not one to shy away from controversial issues, did not offer further comment.
House Speaker Chris Sprowls, R-Palm Harbor, did not respond to an emailed request for comment or a phone call, although he did tweet a statement in support of overturning Roe v. Wade. Senate President Wilton Simpson, R-Trilby, did not respond to an email or a phone call.
Rep. Paul Renner, R-Palm Coast, who’s set to succeed Sprowls next year, did not respond to a call or a text. Sen. Kathleen Passidomo, R-Naples, the incoming Senate president, said in a statement she is a “defender of life” and that she looks forward to the Supreme Court’s final decision.
As state lawmakers formulate their plans, here are three big questions about the future of abortion in Florida.
1. What are the politics of abortion in Florida?
Last month, DeSantis signed a bill banning most abortions after 15 weeks of pregnancy at a raucous ceremony in Kissimmee.
“We are here today to protect life,” DeSantis said then to applause. “We are here today to defend those who can’t defend themselves.”
That bill was one of the most hotly contested measures of the legislative session. Multiple times, student activists opposed to the ban disrupted hearings on the bill with loud demonstrations.
The bill passed essentially along party lines with no exceptions for cases involving rape, incest or human trafficking. The ACLU of Florida has pledged to sue the state over the law, which goes into effect July 1. (As of now, abortions are legal in Florida until the third trimester of pregnancy.)
While they were debating the 15-week measure during this year’s legislative session, Republican lawmakers repeatedly insisted the proposal was not an all-out ban. DeSantis said the proposal was “very reasonable” and another Republican lawmaker called it “generous.”
Other states have gone much further to ban the procedure. At least 18 states either have kept pre-Roe abortion bans on the books or have passed so-called “trigger” laws to ban abortion the moment Roe v. Wade is overturned. Florida has no such law.
John Stemberger, a well-connected attorney in conservative policy circles who leads the Christian conservative Florida Family Policy Council, said he expects the Legislature to take up a so-called “heartbeat” bill banning abortions after six weeks during the next legislative session. Oklahoma, Idaho and Texas have passed laws banning the procedure after six weeks, which is before many people can detect their pregnancies.
“It’s an opportunity for us to really cast a vision for a positive view of this issue that we can love children and not kill them — that we could always have adoption as a better option,” Stemberger said.
Critics of the draft decision, meanwhile, argue overturning Roe could portend the reversal of a number of social protections guaranteed by high-profile Supreme Court decisions, such as the right for same-sex couples to marry.
“It would mean that every other decision relating to the notion of privacy is thrown into question,” President Joe Biden told reporters Tuesday.
There have been some signs that key Republicans are resistant to some of the high-profile national efforts to ban abortion. Passidomo, who will soon lead the Florida Senate, in October compared the enforcement mechanism in the Texas law banning most abortions after six weeks to tactics used by Nazi Germany. The Texas measure allows private citizens to sue those they believe to be violating the law.
“Those people who say that if we allow neighbors to turn neighbors in we will save lives, think about the alternative. How many people died in Nazi Germany because people turned people in?” Passidomo said then. “We don’t do that in this country.”
Stemberger said he doesn’t expect the Texas-style enforcement mechanism to be a factor in the upcoming legislative discussions.
2. What about Florida legal precedent?
For more than three decades, Florida courts have held that the Florida Constitution’s privacy clause explicitly protects the right to an abortion. For that reason, the state has long offered legal protections for abortion that go beyond the precedent set by Roe v. Wade.
In the landmark 1989 case “In re T.W.,” the Florida Supreme Court said that, “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy.”
Robyn Powell, a visiting assistant professor at the Stetson University College of Law who studies reproductive justice, said even longstanding Florida precedent would mean little in a post-Roe world. She noted that the Florida Supreme Court has grown far more conservative in recent decades. DeSantis himself appointed three of the seven justices currently on the court. Soon, he will appoint a fourth.
“Once Roe v. Wade is overturned, which seems highly likely, there’s nothing that stops Florida from banning abortion completely,” Powell said.
However, the legal wrangling over new abortion restrictions would take some time. It’s likely that potential challenges from abortion rights activists could delay the implementation of any law passed by the Legislature.
3. How likely is the Supreme Court to overturn Roe v. Wade?
The opinion published by Politico could end up resembling the court’s final say on Roe v. Wade, the 1973 case that prohibited states from banning abortion. But it also might not.
The draft written by Justice Samuel Alito represents a working version of the Supreme Court’s deliberations over Dobbs v. Jackson Women’s Health Organization, which was argued before the court in December. That case will decide the fate of a 2018 law banning most abortions after 15 weeks of pregnancy in Mississippi. The court has yet to issue its final ruling.
Justices could essentially rule one of three broad ways. They could strike down the 15-week law, citing the precedent set by Roe v. Wade. They could craft a narrow ruling allowing 15-week abortion bans like Mississippi’s and Florida’s. Or they could use the case to revisit the precedent set by Roe, and allow states to regulate abortions on their own.
The draft opinion written by Alito strongly hinted that the court is poised to do the latter.
However, on Tuesday, a Supreme Court spokesperson released a statement cautioning the Alito draft “does not represent a decision by the Court.”