Why Florida isn’t losing the right to an abortion … yet

The real legal fight, in state court, is about to begin.
Florida Gov. Ron DeSantis holds up a 15-week abortion ban law after signing it, Thursday, April 14, 2022, in Kissimmee.
Florida Gov. Ron DeSantis holds up a 15-week abortion ban law after signing it, Thursday, April 14, 2022, in Kissimmee. [ JOHN RAOUX | AP ]
Published June 24, 2022|Updated June 24, 2022

While the overturn of Roe v. Wade dramatically alters the landscape of abortion rights nationally, in Florida, the decision has no immediate effect on the legality of abortion.

That’s because Florida’s abortion laws have to fall within the boundaries of not one, but two constitutions, said Danaya Wright, a professor of law at the University of Florida.

The first is the U.S. Constitution, which no longer protects a person’s right to abortion following the U.S. Supreme Court’s bombshell decision this week in Dobbs v. Jackson Women’s Health Organization.

The second is the Florida Constitution.

47 words, one controversy

The difference in protections largely comes down to the 1980 inclusion of a 47-word amendment to the Florida Constitution guaranteeing the right to privacy.

“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein,” the document reads.

In the past, abortion protections at the federal level have been upheld through the U.S. Supreme Court’s interpretation that the U.S. Constitution contains a right to privacy, under which, they ruled, abortion falls.

But the U.S. Constitution doesn’t specifically include the word privacy in its text.

The Florida constitution does. In a 1989 case, the state’s Supreme Court ruled that the privacy clause covered the right to an abortion.

Florida’s new ban on most abortions after 15 weeks of pregnancy has already been the subject of a challenge in state court. If politicians were to pass further restrictions — a bill banning abortion after six weeks, or an outright ban, for example — the result would be more lawsuits. If any of those lawsuits were to make their way to the state Supreme Court, the court would then need to overturn more than three decades of precedent to deem the restrictions legal.

“It’s a whirlwind of potential legal issues that aren’t going to be solved right away,” Wright said.

Related: 5 resources that could help if you’re seeking abortion in Florida

Still, Wright said, the possibility that the court could overturn the longstanding precedent isn’t out of the question.

Three of the seven current justices were appointed by Gov. Ron DeSantis during his first term. All seven were appointed by Republican governors.

What did voters mean in 1980?

In 1989, the Florida Supreme Court ruled that the state Constitution offered extensive protections for abortion rights. Its opinion was largely concerned with defining “privacy” in a constitutional sense.

“We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime,” the opinion read.

John Stemberger, a conservative lawyer who’s been a leader in the push to restrict abortion rights in Florida, said that court was litigating the wrong question. They should have been asking what voters understood “privacy” to mean when they approved the 1980 constitutional amendment, he said.

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According to Stemberger’s research into the drafting process of that amendment, its authors were trying to protect the informational privacy of Floridians, he said.

“Nowhere in the record is the word ‘abortion’ mentioned anywhere,” Stemberger contended. “All the debate, all the discussion, all the editorials discussed informational privacy.”

Despite the absence of abortion-specific language in the final product, recent reporting by USA Today Network - Florida suggested one of the architects of the amendment had reproductive rights in mind while drafting it.

Should the courts decide at all?

Louis Virelli, an expert in constitutional law at Stetson Law School, said the fate of abortion policy in Florida should not be left up to an unelected court.

“If we want to change the last three decades of constitutional law in Florida, we should ask the voters, because we can,” Virelli said.

Florida has a process by which voters can directly change the language of the state Constitution through a referendum. Amending the Constitution requires the approval of 60 percent of the electorate. It’s been amended in the past after legislators failed to act on hot-button issues. The amendments on voting rights for convicted felons and the legalization of medical marijuana are two recent examples.

Related: This Tampa Bay group helps people get abortions. With Roe overturned, their job just got harder.

There is some precedent for voters adding abortion restrictions to the state Constitution. In 2004, nearly 65 percent of voters approved a measure allowing the state to pass a law requiring parents to be notified of a minor’s decision to obtain an abortion. In 2020, the Legislature passed such a law.

While most Florida voters say in polls that they want to protect abortion access, for the last quarter-century, they have also sent Republican majorities to Tallahassee — the party that is largely hostile to abortion rights.

On July 1, a new Florida law signed by DeSantis will go into effect banning most abortions after 15 weeks of pregnancy. A recent poll from researchers at the University of North Florida found that a majority of Floridians are opposed to the 15-week ban.

• • •

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