TAMPA, Fla. — Florida’s six-week abortion ban is in limbo.
Its future depends on the conservative Florida Supreme Court and how the justices rule in an ongoing challenge over the state’s current law banning most abortions after 15 weeks of pregnancy.
The six-week ban, signed by Gov. Ron DeSantis on April 13, would limit most abortions at that point in a pregnancy. In cases of rape, incest and human trafficking, abortions would be permitted up to 15 weeks, and exceptions for medical necessity exist beyond that. But the law only goes into effect if the state gets a favorable ruling on the court case over its 2022 abortion law.
The Florida Supreme Court has not scheduled oral arguments yet. But the plaintiffs - a group of abortion providers - have a brief due Monday. Here’s what to know about the ongoing legal battle.
What are the possible paths the court could take?
The Florida Supreme Court decided in January to hear the challenge to the state’s abortion law. The plaintiffs say the abortion restrictions are unconstitutional. The DeSantis administration says prior rulings from the state’s highest court wrongly gave too much protection to abortion.
The court has a number of considerations:
First, it will decide whether the plaintiffs even have legal standing to sue. If the lawsuit moves forward, the court could weigh whether a privacy-rights clause in the state’s Constitution protects the right to an abortion, and if so, whether the 15-week abortion ban causes an undue burden on that protection.
If the lawsuit is thrown out or if justices say that the 15-week abortion ban can remain in place, the new six-week ban would go into effect 30 days later.
Who is on the state Supreme Court?
Florida’s seven-member Supreme Court leans heavily conservative. DeSantis has appointed four of the justices, and has the opportunity to appoint a fifth after one of the justices stepped down earlier this year.
Justice Charles Canady, appointed to the Supreme Court in 2008, was known for being against abortion when he was a U.S. representative. His wife, state Rep. Jennifer Canady, is a co-sponsor of the six-week ban.
Justice Jamie R. Grosshans, whom DeSantis appointed in 2020, has done legal work for an organization that intervenes to stop young women from having abortions.
Anti-abortion groups also applauded in 2019 when DeSantis appointed Chief Justice Carlos Muñiz. But, when he was a private attorney, Muñiz authored a 2004 article that said Florida’s privacy clause was designed to protect abortion rights, according to The Washington Post.
University of California, Davis law professor Mary Ziegler said she thinks it’s likely Florida’s conservative Supreme Court will decide to overrule prior precedent and say the right to privacy doesn’t apply to abortion.
What is the issue about privacy?
Florida’s Constitution says that “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 clause was adopted in 1980.
The state’s high court has previously held that it protects Floridians’ access to abortion. The abortion providers suing the state argue that the 15-week law violates that right.
But DeSantis’ administration is arguing that the court’s previous decision was wrongly decided and that the right to privacy was never meant to pertain to abortion. They say the amendment was about data privacy, not decisional privacy.
In a filing, the state said that even if the clause could be “stretched” to apply to personal decisions, it “certainly would not provide a right to cause harm, including to unborn life.”
But the plaintiffs argue that voters “adopted the amendment at a time when abortion was a ‘well-established’ privacy right” - notably, after justices in the 1973 U.S. Supreme Court case Roe v. Wade determined that people were guaranteed access to an abortion because of their implied right to privacy.
Danaya Wright, a professor of law at the University of Florida, said when the U.S. Supreme Court interpreted that a right to privacy existed, there was wide debate about its constitutional standing because there is no federal clause about privacy.
“The idea that the Florida privacy provision in our Constitution was not related to this huge national debate and this constitutional question that was going on at the federal level, I think it’s just willful blindness to suggest,” Wright said.
What does undue burden have to do with it?
Even if the court says that the right to privacy does pertain to abortion, the question then becomes whether the 15-week ban presents a level of “undue burden” that violates that constitutional guarantee, Wright said.
The state argues that if the right to privacy pertains to abortion, the 15-week ban is not onerous enough to violate it. It says that “pregnancy tests are now inexpensive and accurate, and a woman ordinarily discovers she is pregnant by six weeks of gestation.”
But the other side argues that the 15-week restriction still causes severe harm, especially because it could force some women “to give birth against their will, which poses substantially greater risks of mortality and morbidity than abortion and carries long-term adverse consequences for the patient’s health, family stability, and well-being.”
Wright said if the courts uphold the 15-week ban and the new law goes into effect, there will likely be another challenge related to undue burden.
Do the plaintiffs have a right to sue?
Another possible outcome could see the state Supreme Court not looking at the case based on the merits of the arguments, but rather deciding that the plaintiffs don’t have standing to sue because they are not patients who are personally affected by the law.
The U.S. Supreme Court has already decided that third parties, like abortion providers, can sue on behalf of their patients, Wright said, though some are seeking to overturn it. An appellate court recently rejected the plaintiffs’ request for an injunction in the case, citing this issue in part.
“Standing is a way for the court to avoid the hard issues,” Wright said.
The providers argue they have proper third-party standing to sue. They argue that if a pregnant woman herself were to sue, she would have to be at or beyond 15 weeks of pregnancy, giving that woman only weeks to file a lawsuit and move through complicated legal steps before she was too far along to get an abortion.
If the court tossed out the lawsuit based on standing, the 15-week lawsuit would presumably stand, Wright said.
What would this mean for the future?
Abortion rights supporters in Florida have long wrestled with whether to send a challenge before the courts because it could possibly mean undoing the privacy clause, Ziegler said.
If the court were to pave the path for a six-week abortion restriction, Ziegler said, it’s possible groups could pour outside money in and organize around the next judicial retention election to try to oust justices unfavorable to abortion rights.
In Florida, judicial retention elections have generally been a “ho-hum” affair, Ziegler said, adding that judges likely wouldn’t typically worry about being retained.
Still, in Wisconsin, a contentious Supreme Court race this year hinged on the candidates’ stances on abortion, and the liberal judge won by 10 points over her conservative opponent.