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Florida to get 6-week abortion ban, but abortion access will be on 2024 ballot

If the amendment passes, it would override the six-week ban.
 
Abortion rights supporters gathered at Joe Chillura Courthouse Square in Tampa Sunday, Jan. 22, 2023, which marks the 50th anniversary of the Roe v. Wade Supreme Court decision.
Abortion rights supporters gathered at Joe Chillura Courthouse Square in Tampa Sunday, Jan. 22, 2023, which marks the 50th anniversary of the Roe v. Wade Supreme Court decision. [ AYA DIAB | Times ]
Published April 1|Updated April 2

TALLAHASSEE — The Florida Supreme Court on Monday ruled that the state’s Constitution does not protect access to abortion, letting the current 15-week ban stand and triggering a stricter six-week ban.

That six-week ban is now set to take effect in 30 days.

But the court separately on Monday gave the OK for an amendment to go on November’s ballot that would protect abortion.

Justices voted 6-1 — with Justice Jorge Labarga dissenting — to uphold the constitutionality of the 15-week abortion law signed by Gov. Ron DeSantis in 2022. The ruling was a departure from precedent set in the 1980s that said the state’s right to privacy protected the decision about whether to terminate a pregnancy.

When Florida lawmakers last year passed a six-week ban, they wrote a trigger provision setting it to take effect after a court ruling in favor of the 15-week abortion law.

The change will disrupt abortion access not only in Florida, but for women across the southeastern U.S., giving them fewer places to turn to for legal abortions in a part of the country where many states ban abortion almost entirely.

The justices were more split in their amendment decision, deciding in a 4-3 margin to allow it on the ballot. The amendment has been championed by abortion-rights groups and supported financially by groups like Planned Parenthood.

The amendment’s text in part reads that “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.” Viability is estimated to be around 24 weeks of pregnancy.

Attorney General Ashley Moody had challenged the amendment as misleading, but the majority of Florida justices said it wasn’t. In a majority court opinion, Justices Carlos Muñiz, Charles Canady, John Couriel and Labarga said the amendment’s broad sweep is obvious from its summary, and denying that “requires a flight from reality.”

In a statement, DeSantis said that the three dissenting justices — Jamie Grosshans, Renatha Francis and Meredith Sasso — got it right. All three are DeSantis appointees, as are Muñiz and Couriel.

“This amendment is misleading and will confuse voters,” Julia Friedland, a spokesperson for DeSantis, said in a statement. “The language hides the amendment’s true purpose of mandating that abortions be permitted up to the time of birth.”

At least 60% of voters are needed to approve the amendment. If passed, it would effectively undo the six-week abortion ban only months after it goes into effect. It could also undo Florida’s current mandatory 24-hour delay before an abortion. Parents would still be notified before a minor child has an abortion, but passage of the proposed amendment could undo laws that require parental consent.

Voters in several states have moved to either expand abortion access or shoot down further restrictions in the nearly two years since the U.S. Supreme Court overturned Roe v. Wade, which had provided federal protection for abortion.

That includes Ohio, where about 57% of voters in November supported a measure that would protect abortion up until viability. In all seven of the states where voters have weighed in on abortion since 2022, abortion-rights advocates have come away successful.

Though Muñiz agreed to put the amendment on the ballot, he expressed concerns in a concurring opinion about how the amendment would affect the rights of the unborn, saying it would “constitutionalize restrictions on the people’s authority to use law to protect an entire class of human beings from private harm.”

It echoes questions he raised in February during oral arguments.

Mary Ziegler, a reproductive law expert at UC Davis, said she had expected Florida’s justices would eventually write about “fetal personhood,” a concept that aims to give fetuses more legal rights. But she said she didn’t expect it to come in the ballot ruling, especially because it wasn’t part of Moody’s argument.

“Usually courts are not in the business of biting off more than they have to to resolve a particular case,” Ziegler said.

The court’s dual decisions on Monday raised mixed feelings for people on both sides of the abortion issue.

Lauren Brenzel, the campaign director for the group sponsoring the proposed amendment, said in a statement that they were “thrilled Floridians will have the opportunity to reclaim their bodily autonomy” by voting for the amendment in November. Brenzel added that the six-week ban is an “extremist” policy.

“The government should not interfere in personal medical decisions that should be between Floridians and their doctors,” Brenzel said. “And doctors and nurses should not have to risk criminal prosecution to treat the patient in front of them.”

Caitlin Connors, the Southern regional director for Susan B. Anthony Pro-Life America, said the group was thrilled that the six-week law will soon be enacted, but disappointed that the amendment ruling could undo it.

“What we’ll certainly have ahead of us is a major fight on our hands to continue to protect the unborn and the progress that has been made in the state of Florida to protect the unborn,” Connors said.

Moody, in a statement, expressed disappointment that the justices had approved the proposed amendment to go on the ballot, but applauded the court for “revisiting its precedent on Florida’s right to privacy” in the 15-week abortion law case.

Florida’s new six-week ban includes limited exceptions for rape, incest and human trafficking up to 15 weeks of pregnancy, and only with some form of proof like a medical record or police report. Beyond that, any exceptions would be for the health of the mother.

Opponents of the restriction have said that some women don’t know they’re pregnant at six weeks.

With Florida soon to have a six-week ban, North Carolina becomes the closest Southern state with more abortion access, with their 12-week cutoff. Virginia has not restricted abortion access, and abortion is available through 26 weeks. Both Georgia and South Carolina also have six-week bans. Other Southern states, like Alabama, Mississippi and Louisiana, have completely banned abortion with limited exceptions.

Times staff writer Ivy Nyayieka and Times/Herald Tallahassee bureau reporter Alexandra Glorioso contributed to this report.