Nearly a year-and-a-half after the U.S. Supreme Court overturned Roe v. Wade, the Florida Supreme Court must decide whether to uphold a 15-week abortion ban signed by Gov. Ron DeSantis.
If it stands, a six-week ban signed by DeSantis this year would take effect 30 days later.
Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, and Romy Ellenbogen, Tallahassee correspondent at the Tampa Bay Times, spoke about the ban Friday with Tom Hudson on The Florida Roundup.
Ellenbogen said its unclear when the state Supreme Court will make its decision.
“Unlike the U.S. Supreme Court, the Florida Supreme Court doesn’t have a window where they have to release all their opinions. So the decision could come down next week, it could come down next year,” she said.
Goodhue said the 15-week ban has been dangerous for Floridians, and these decisions should be left between patients and their doctors.
“I mean, we’ve seen women who have had life-threatening conditions who have not been able to end their pregnancies. Doctors have not been able to sign off on that because of these confusing laws and this completely arbitrary number of 15 weeks,” Goodhue said.
Despite that, Ellenbogen said the legal arguments placed in front of the state Supreme Court don’t revolve around health.
“I think the arguments have really not been as much about health care as it has been about the constitutional right to privacy and whether that does protect someone’s right to access an abortion, and there are some references to, right, what happens if you aren’t able to access abortion and how sometimes carrying out a pregnancy can be quite dangerous,” Ellenbogen said.
Goodhue said Florida has a history of privacy rights protecting access to abortion care, pointing to the state constitution and past legal decisions. The state, however, argues the original language in the constitution is about personal data and information, not what they call “decisional autonomy.” Goodhue said this argument is disingenuous.
“I don’t think that there was a huge effort just to slowly think about that one issue, and that the constitution should be interpreted to protect people’s freedoms," Goodhue said. "And in fact I think Floridians value that, and they value that they have a stronger right to privacy in their state.”
Both Goodhue and Ellenbogen also noted the conservative majority on the Florida Supreme Court. Justice Charles Canady, who used to be a U.S. representative, introduced a House bill called the Partial-Birth Abortion Ban Act in 1995. His wife, Rep. Jennifer Canady from Lakeland, is a co-sponsor of the six-week abortion legislation. Justice Jamie Grosshans, who was appointed by DeSantis, also has ties to anti-abortion legal groups.
“So it doesn’t necessarily matter that that’s what the constitution says, we are seeing increasingly conservative justices overturning those rights,” Goodhue said.
Meanwhile, abortion rights groups are trying to place a state constitutional amendment to protect abortion up to about 24 weeks of pregnancy on the 2024 ballot. Attorney General Ashley Moody, however, asked the Florida Supreme Court to review the wording of the proposed amendment earlier this month. She pointed to the term “viability” used in the referendum, which she said is too vague.
“Attorney General Ashley Moody did write an opinion piece where she said her argument was going to be about, you could define viability as that first point at about 12 weeks where you know the pregnancy is likely to continue without a high risk of miscarriage, and then that second point of viability in that 21- to 24-week window where a fetus could survive outside of the uterus without major medical intervention,” Ellenbogen said.
Goodhue said the term is defined in Florida statute and in U.S Supreme Court and Florida Supreme Court cases.
“Viability means that a fetus is viable up until the time that it can survive outside the womb through standard medical measures,” she said.
Goodhue also said because the term has been historically well established, its definition doesn’t need to be included in the referendum.
“I think it’s just disingenuous to say that Floridians wouldn’t know what they’re voting for, and what Floridians will be voting for is to reject government interference in abortion, and that’s what this ballot initiative does, it says that law shall not prohibit or penalize or delay abortion before viability or when necessary to protect the patient’s health as determined by the patient’s health care provider,” she said.
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