Who will enforce Florida’s 15-week abortion ban? And what if they refuse?

Questions of enforcement loom as a legal battle over the state’s new law appears destined for Florida’s highest court.
It's expected that the Florida Supreme Court will likely have to decide whether the state's 15-week abortion ban is unconstitutional.
It's expected that the Florida Supreme Court will likely have to decide whether the state's 15-week abortion ban is unconstitutional.
Published July 7, 2022

When the U.S. Supreme Court last month overturned Roe v. Wade, new laws in several states carried various promises to restrict or outright ban abortions.

In Florida, lawmakers and Gov. Ron DeSantis, anticipating Roe’s downfall, this spring passed a law making abortions in the Sunshine State illegal after 15 weeks of pregnancy. The new law, which went into effect last week, carries with it a promise of a third-degree felony if broken. Doctors could also face the revocation of their medical licenses, among other sanctions, if they conduct abortions beyond the 15-week threshold.

But who will enforce such a law? And what if they don’t?

Those are among the many questions that loom as a high-stakes legal and political battle takes shape. Speculation is rampant, but answers are murky. While some see a future of lax or inconsistent enforcement, some things might not change much at all.

“Most abortions in Florida, that are reported, are done prior to 15 weeks,” said David Gibbs, a Clearwater attorney and president of the National Center for Life and Liberty, a Christian legal organization. “There is some question at this point about what practical impact will occur.”

Complicating questions about enforcement are questions about whether the 15-week ban will stand.

That’s because Florida’s state constitution includes a clause guaranteeing a right to privacy. Early this week, a Tallahassee judge granted a request from abortion-rights groups for an injunction to stop the law from going into effect. That lasted about an hour before state officials appealed.

All eyes are on the Florida Supreme Court, which ultimately may have to decide whether the 15-week ban can stand.

In 1989, the state high court ruled that the right to privacy in the state constitution protected the right to an abortion. But the makeup of the court has since changed. Its sitting justices were all appointed by Republican governors, and most of them are generally regarded as taking a conservative approach to the law.

Will the court find a way to reconcile the constitution’s privacy clause with the new 15-week law?

“I’m not going to take bets on that,” said Judith Scully, a professor at Stetson University College of Law. “They, too, have the power of determining the interpretation of that provision. Precedent has indicated that there is protection of privacy as it relates to abortion.”

Already, there is resistance from those who believe the 15-week law is unconstitutional.

“When I became State Attorney, I put my hand on a Bible, and I swore to God that I would defend the U.S. and Florida Constitutions, and I intend to do so,” said Hillsborough State Attorney Andrew Warren. “This 15-week ban is an unconstitutional law. The Legislature is hoping courts ignore the Florida constitution. But I’m upholding the law and protecting the fundamental rights of all Floridians.”

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Warren was among 83 elected prosecutors nationwide who in the wake of the high court’s decision signed a letter pledging not to prosecute those who seek, provide or support abortions.

Pinellas-Pasco State Attorney Bruce Bartlett said he would follow the law, but didn’t delve into what that would mean in cases involving abortion.

“I took an oath when I became state attorney to follow the law,” Bartlett told the Tampa Bay Times. “I don’t make the laws. The legislature makes laws.”

Allison Miller, who is challenging Bartlett in the November election, echoed criticisms of the 15-week ban, saying she would not prosecute doctors, providers or people seeking reproductive health care.

“I believe what has been passed by our legislature, the 15-week ban, is unconstitutional,” she said. “And so I believe my statement is consistent with following the law in this state.”

State attorneys elsewhere had varying responses, but veered away from specifics.

“Each case presented to this office will be reviewed based on the law and the specific facts alleged,” said Fifth Circuit State Attorney William Gladson, whose district includes Hernando and Citrus counties. “Only then can a determination be made as to whether prosecution is appropriate. Rest assured, this office will fulfill its Constitutional obligation to the people we serve by always following the law.”

“Throughout my career, I have always worked to protect women’s reproductive rights,” said Palm Beach State Attorney Dave Aronberg. “Our office will continue to review every matter submitted to us by law enforcement on a case-by-case basis.”

Prosecutors have wide discretion in which crimes they choose to pursue. Among legal observers, there is a sense that some jurisdictions likely won’t see the state pursuing abortion-related cases.

“What you’ll see is certain prosecutors will put a very low priority on these types of cases, whereas others aggressively pursue it,” said Gibbs, the Clearwater attorney.

“This is absolutely one way of defanging the law,” said Tamara Lave, a professor at the University of Miami School of Law.

She noted that prosecutors routinely make such decisions about what to prosecute. Sometimes external pressure can influence such decisions.

“They make decisions sometimes based on the right kind of criteria, like justice,” she said. “And other times they make decisions based on their desire to be reelected and the power and influence of the person they’re thinking about prosecuting.”

If certain jurisdictions avoid enforcement, it’s possible state officials could work around it.

“Whether it’s some kind of jurisdictional maneuver, whether it’s empowering (state attorneys) from another county to take over cases, whether it’s empowering private prosecution, those are all potential avenues,” said Avlana Eisenberg, a professor at Florida State University College of Law. “I don’t know what is most likely.”

The possibilities evoke memories of a 2017 legal dustup when Aramis Ayala, who was then the state attorney for Orange and Osceola Counties, announced her refusal to seek the death penalty in any first-degree murder cases. That spurred then-Gov. Rick Scott to yank away and reassign dozens of her cases to a different state attorney.

But whether something similar could result with abortion cases is far from certain.

Whether the state sees any criminal cases related to abortion is still speculative. The previous state statute barred abortions beyond 24 weeks, or what is commonly considered the point of viability. Even so, lawyers questioned by the Times were hard-pressed to identify any cases in which a prosecution resulted from an illegal abortion.

“Most people view the law as creating parameters,” said Gibbs. “And they try to operate within it.”

• • •

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