Top Florida Court Rules Against Protections For Abortion, Greenlights 6-Week Ban

The ban will take effect in 30 days, after the state's Supreme Court ruled that a crucial clause in the state constitution does not extend to reproductive rights.
Florida Gov. Ron DeSantis departs after speaking at a Concerned Women for America Summit on Sept. 15, 2023.
Florida Gov. Ron DeSantis departs after speaking at a Concerned Women for America Summit on Sept. 15, 2023.
via Associated Press

Florida’s state Supreme Court ruled on Monday that the state constitution does not protect abortion care ― declaring the state’s current 15-week ban constitutional and giving the go-ahead for a six-week ban to take effect in 30 days.

The high court ruled that a privacy clause in the state constitution does not protect abortion care.

“The parties have presented thoughtful arguments as to the scope of this provision, which has traditionally been referred to as the ‘Privacy Clause.’ Those legal arguments on the Privacy Clause’s meaning are, in our view, distinct from the serious moral, ethical, and policy issues that are implicated in the subject matter of this case,” the ruling reads.

“Our analysis focuses on the Privacy Clause’s text, its context, and the historical evidence surrounding its adoption,” the ruling continues. “After considering each of these sources and consistent with longstanding principles of judicial deference to legislative enactments, we conclude there is no basis under the Privacy Clause to invalidate the statute.”

Pro-choice groups and abortion providers filed suit against the state in 2022 after Gov. Ron DeSantis (R) signed the 15-week ban into effect. The state Supreme Court, which DeSantis has stacked with conservative judges in recent years, agreed to hear arguments in the case last year but allowed the 15-week ban to stay in effect during that time.

Dr. Cecilia Grande, a Florida OB-GYN, told reporters on Monday afternoon that a six-week abortion ban will be “very detrimental” for birthing people in Florida.

“This represents, pretty much, a total ban,” Grande said. “We anticipate that patients are going to have a delay in care, and that’s not good for the doctors and that’s not good for patients ... It’s a very bad deal for the women of Florida to have a six-week ban.”

Also on Monday, the Florida Supreme Court approved a pro-choice amendment to appear on the state’s ballot in November. The amendment seeks to protect abortion up until fetal viability, usually at around 24 weeks.

Oral arguments in the lawsuit, brought by Planned Parenthood, the American Civil Liberties Union and other parties, were heard in September.

“Abortion has been a recognized right in Florida for decades,” Whitney White, an ACLU staff attorney, said during oral arguments. “There’s no basis in the text to exclude a decision so personal and so private as whether to continue a pregnancy.”

Last year, the state legislature passed a six-week abortion ban that includes exceptions for rape, incest or human trafficking, but only through the first 15 weeks of pregnancy. In order to get an abortion, the survivor “must provide a copy of a restraining order, police report, medical record, or other court order or documentation” to prove she was a victim of rape or incest, according to the bill.

The six-week ban also includes an exception for the life of the pregnant person if two physicians certify in writing that the woman will die if she continues the pregnancy. Several Democrats have criticized the two-physician requirement, however, citing a lack of doctors in rural areas that could hinder women from receiving lifesaving care.

The six-week abortion ban is now set to take effect a month from April 1. The legislation, which DeSantis signed in a closed ceremony in the dark of night, not only bans abortion after six weeks ― a point at which most people don’t even realize they’re pregnant ― but also prohibits telehealth for abortion care and allots $25 million annually to support deceptive anti-abortion pregnancy centers.

Plaintiffs in the suit argued that the privacy clause in Florida’s constitution provides broad protections for privacy rights, including the right to get an abortion. But the state argued that the clause, which was adopted in 1980 via voter referendum, was not explicitly meant to protect abortion care, but rather to cover information privacy in such matters as personal records.

“This is a 50-year reflection by our society, by our state, that people’s elected representatives believe that there’s a compelling interest in protecting human life. Why should we as a court not defer to that?” Chief Justice Carlos Muñiz asked White during oral arguments, implying that the protection to abortion care was not explicitly included in the privacy clause.

“This is the largest single loss of care that we've seen since the overturn of Roe v. Wade.”

- Lauren Brenzel, campaign director, Floridians Protecting Freedom

The 15-week abortion ban, which has stayed in effect during legal battles, includes no exceptions for rape or incest, and only allows exceptions if the pregnant person is at risk of serious injury or death when the fetus has a fatal abnormality. But as HuffPost’s Sara Boboltz has reported, lifesaving exceptions in abortion bans often don’t work in practice. And there have been multiple instances where Floridian women’s lives were put at risk because they were denied care.

A six-week abortion ban will likely devastate access not only for Floridians but for people seeking care across the Southeast. Florida became a safe haven for abortion care after the U.S. Supreme Court repealed federal abortion protections in 2022, leading nearly a dozen states, mostly in the Southeast, to enact near-total abortion bans. People in that part of the country who have the resources to travel have largely gone to Florida or North Carolina to get abortion care.

North Carolina enacted a 12-week abortion ban last year, and South Carolina a six-week ban. The last abortion safe haven in the region is now Virginia. Abortion bans like the ones in the Southeast disproportionately affect low-income people, women of color, people who live in rural areas, women with disabilities, and trans and gender-nonconforming people.

“This is about to create an unprecedented public health crisis in the state of Florida,” Lauren Brenzel, the campaign director for Floridians Protecting Freedom, the group behind the pro-choice amendment, said Monday during a press conference.

“This is the largest single loss of care that we’ve seen since the overturn of Roe v. Wade,” Brenzel said, referring to the six-week abortion ban. “What we know is that Florida is a state that is mostly surrounded by water, and where it’s not surrounded by water, it’s surrounded by states that already have total or near-total bans ― meaning that even for patients who need to access medically necessary abortion, the road to do so will be hard.”

Voters have protected abortion in every state where it’s been on the ballot since 2022, including in red and purple states like Kentucky and Ohio.

“Floridians deserve the freedom to decide when and how to grow their families. They deserve the freedom to decide what’s best for their bodies and for their lives,” Dr. Robyn Schickler, an OB-GYN in central Florida and the chief medical officer at Planned Parenthood Southwest, said during a press conference after oral arguments in early September.

“Even if our courts fail us, Floridians have the opportunity to protect that freedom,” she said. “If approved by voters, a constitutional amendment ballot initiative would establish firm protections from government interference in our reproductive health decisions. As a physician and a Floridian, this amendment and the fire Floridians have brought to getting it on the ballot give me hope ― hope for my patients, for our communities and our futures.”

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