Florida was once a bastion of women’s rights in the otherwise conservative South. It even recognized a state constitutional right to abortion. Those protections are vulnerable this year as the Florida Supreme Court, where five of the seven justices were appointed by Republican Gov. Ron DeSantis and the remaining two were appointed by then-Republican Gov. Charlie Crist, is poised to reconsider its abortion precedents.
On September 8, the court will hear oral arguments in Planned Parenthood of Southwest and Central Florida v. Florida, which is a challenge to Florida’s 15-week abortion ban, H.B. 5. The 15-week ban was modeled on the Mississippi law that was upheld by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization. However, if Florida wins, then a new six-week abortion ban will be triggered because of another recently enacted law lying in wait.
State courts like Florida’s have taken on new significance in the reproductive rights arena in the aftermath of Dobbs, where the U.S. Supreme Court ruled that abortion is not a fundamental right guaranteed by the U.S. Constitution. Invoking federalism, the Supreme Court punted the issue of abortion’s legality to the 50 states.
Post-Dobbs America is a tale of two nations. When voters have had their say at the ballot, reproductive freedoms have won, even in states like Kentucky and Kansas. In states with progressive legislators and governors, abortion care and reproductive rights are stronger than they were pre-Dobbs. For instance, California added protection for abortion to its state constitution in 2022, and New York provides confidential abortions up to 24 weeks and now provides access to reproductive care through telehealth including for women from out of state. Further, the New York State Legislature passed an Equal Rights Amendment that will let voters decide in 2024 whether they wish to enshrine reproductive rights in the state constitution.
Even as reproductive rights have been expanding in progressive states, 13 Republican-led states have banned abortion, according to Guttmacher Institute. This has resulted in near-death experiences and trauma for women seeking care for pregnancy complications, as exposed in a lawsuit in Texas.
Dobbs makes state constitutions pivotal for women’s full bodily autonomy. While state courts’ records are mixed, even state supreme courts in conservative states such as North Dakota and Oklahoma have recently ruled in favor of reproductive freedoms, albeit on very narrow or technical grounds.
In North Dakota, plaintiffs argued that the state constitution protected the right to abortion. In March 2023, the North Dakota Supreme Court temporarily blocked a state law that banned abortion with limited exceptions to save the life of the mother or in cases of rape or incest but had no exceptions for the mother’s health otherwise. The court concluded that the plaintiff “has a substantial likelihood in establishing there is a fundamental right for a woman to obtain an abortion in instances where it is necessary to preserve her life or health.” The trial court will hear further litigation about this law. The North Dakota legislature’s response to this ruling supreme court was to enact a near total abortion ban, which is now also being challenged in state court.
In May, the Oklahoma Supreme Court reaffirmed a prior ruling that Oklahoma’s heartbeat law and a separate criminal ban on nearly all abortions both violated the state constitution’s limited right to an abortion to protect the life of a pregnant person. The court’s reasoning was based on a provision of Oklahoma’s constitution that has no federal analogue: “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.” Thus, Oklahoma women have some access to reproductive care after this narrow decision.
While privacy is an implied right in the U.S. Constitution, state constitutions — including those of Arizona, Florida, Hawaii, Illinois, Montana, New Hampshire, South Carolina, and Washington — protect privacy explicitly. Post-Dobbs, courts weighing the issue of abortion access in these states have often looked to these privacy provisions to resolve the matter. For example, a lower court invalidated Florida’s 15-week abortion ban in 2022 based on the state’s privacy protections, but the ban was reinstated on appeal.
The current precarious state of abortion rights in Florida stands in stark contrast to the once-expansive protections upheld by the state’s highest court. In 1989, Florida’s supreme court ruled in In re T.W. that Floridians’ right of privacy under Article 1, Section 23 of the state constitution “is clearly implicated in a woman’s decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime.”
Similarly, in the 2017 case of Gainesville Woman Care v. State, the Florida Supreme Court stated, “Florida voters have clearly opted for a broader, explicit protection of their right of privacy. Indeed, Florida voters rejected a constitutional amendment in 2012 that would have interpreted Florida’s explicit constitutional right of privacy as being no broader than the implicit federal constitutional right of privacy.” The Gainesville court added that “Florida’s constitutional right of privacy encompasses a woman’s right to choose to end her pregnancy.”
The Florida Supreme Court already signaled its hostility to abortion rights in January by refusing to block the 15-week ban while litigation was ongoing. This ruling reduced access from 24 weeks to 15 weeks of pregnancy. If the court were being faithful to its own precedents, then it would rule that the 15-week ban violates the state constitution’s right to privacy. However, just as the U.S. Supreme Court didn’t hesitate to overrule the precedents of Roe, Casey, Hellerstedt, and June Medical Services when it ruled in Dobbs, the Florida Supreme Court may follow suit and either overrule or ignore its precedents described above.
For those who believe in women’s autonomy, the prospect of the Florida Supreme Court stripping away reproductive rights that were once guaranteed by the U.S. and Florida Constitutions is a grim one. But the women of Florida may yet have the last word. There is an effort to enshrine abortion rights in the Florida Constitution. Signature gatherers are already two thirds of the way to their goal. If they succeed, the question of reproductive freedoms will be on the Florida ballot in 2024.
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