In twin decisions all but guaranteed to make abortion the top ballot issue in November, Florida’s Supreme Court ruled the state Constitution’s privacy provision does not cover the right to abortion, clearing the way for a six-week abortion ban to soon start.
But, in a separate 4-3 ruling, the justices said voters will be able to add specific abortion rights protections to the Constitution this fall.
Jane Torres, a Key Biscayne resident, said she sees both decisions driving women to vote in November. “I think this is really good for Democrats,” she said. “I think people are going to approve the amendment even more so, frankly, because of the six-week ban that most people think is ridiculous.”
She pointed to a poll in November by the University of North Florida that found that 62% of registered voters supported the abortion rights measure – over the threshold to pass a constitutional amendment
Locally, Democrats wasted little time capitalizing on the rulings for their runs for the U.S. House against incumbent Rep. Maria Elvira Salazar.
“Supporting reproductive freedom and protecting families’ privacy is at the heart of our campaign,” former Key Biscayne Mayor Mike Davey’s campaign said in a fundraising message. “We’re rallying voters to turn out for us and vote for the critical amendment to protect abortion access.”
His primary rival, Lucia Baez-Geller, posted on social media: “I welcome the decision of the Florida Supreme Court to reject the efforts of anti-choice extremists and allow Floridians the ability to vote on a woman’s fundamental right to our own bodily autonomy.”
Salazar’s social media account on X, formerly Twitter, still had an Easter message up.
Republicans plan fight
Republicans, meanwhile, showed how they were going to try to fight the ballot measure. House Speaker Paul Renner, R-Palm Coast, said the amendment would allow abortion up to birth, which misstates the text.
The text of the amendment reads: “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 health care provider.”
It provides for one exception that is already in the state constitution: Parents must be notified before their minor children can get an abortion,
“We’re going to be like China and other countries that have extreme laws with respect to abortion if this activist-driven amendment is passed into law, and it should be rejected by voters,” he said.
The Pew Center, using 2021 data from the Centers for Disease Control and Prevention, found that 1% of abortions were performed at 21 weeks or more of gestation.
When asked if the abortion amendment – along with another that would legalize marijuana in Florida – will make Florida more competitive for Democrats, Renner said he felt Republicans are ready for “those conversations.”
“They go much, much farther than where most Floridians are,” he said.
If not, voters will unwind the Supreme Court’s other abortion ruling that the 15-week ban signed by Gov. Ron DeSantis in 2022 can take effect. The vote was 6-1.
The ban has been enforced while it was being challenged in court. A six-week ban passed in the 2023 legislative session was written so that it would not take effect until a month after the 2022 law was upheld.
A six-week ban would likely have a major impact on women seeking abortions in Florida and throughout the South.
Since the U.S. Supreme Court overturned Roe v. Wade in June 2022 in the Dobbs decision, most Republican-controlled states have adopted bans or restrictions on abortions. Every ban has faced a court challenge.
Dobbs decision opened the Florida door
Justice Jamie Grosshans, writing for the majority, said the U.S. The Supreme Court’s decision in the Dobbs case led the justices to also reverse existing statewide precedent on abortion.
There is no specific privacy clause in the federal Constitution, but Florida voters added one to the state’s constitution in 1980. Then, in 1989, the Florida Supreme Court applied the new amendment to the abortion question in a case called “T.W.”
Describing what she said was flawed reasoning, Grosshans said the T.W. decision was erroneous because it had “adopted Roe’s notions of privacy and its trimester framework as matters of Florida constitutional law” which no longer applies.
She wrote that while some Florida voters in 1980 might have thought “the right to be let alone” covered abortion, many others did not and that historical debate about the amendment 40 years ago was not clear.
“The Privacy Clause of the Florida Constitution does not mention abortion or include a word or phrase that clearly incorporates it,” she said. “The decision to extend the protections of the Privacy Clause beyond what the text could reasonably bear was not ours to make,” she wrote.
Justice Jorge Labarga said he was “dismayed” by his colleagues, writing a dissent that cast the majority opinion as intellectually dishonest. “I lament that what the majority has done today supplants Florida voters’ understanding— then and now—that the right of privacy includes the right to an abortion,” he wrote.
Recreational Marijuana
Voters will also decide whether to allow companies that grow and sell medical marijuana to sell it to adults over 21 for any reason. The ballot measure also would make possession of marijuana for personal use legal.
Attorney General Ashley Moody had also argued this proposal is deceptive, in part, because federal law still doesn’t allow use of marijuana for recreational or medical use of marijuana. She argued that the court previously erred when it approved the language for the medical marijuana ballot initiative voters passed in 2016.
Editor’s Note: This story updates previous story on the Supreme Court’s rulings.
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JOHN PACENTI is the executive editor of the Key Biscayne Independent. John has worked for The Associated Press, the Palm Beach Post, Daily Business Review, and WPTV-TV.
Tony Winton is the editor-in-chief of the Key Biscayne Independent and president of Miami Fourth Estate, Inc. He worked previously at The Associated Press for three decades winning multiple Edward R. Murrow awards. He was president of the News Media Guild, a journalism union, for 10 years. Born in Chicago, he is a graduate of Columbia University. His interests are photography and technology, sailing, cooking, and science fiction.