Florida Supreme Court Upholds DeSantis’ Abortion Ban, But Voters Will Have The Last Word

Make it hurt.

The Florida Supreme Court on Monday upheld the state’s 15-week abortion ban, which lets the even-worse six-week abortion ban take effect in one month. Considering that few people even know they’re pregnant before six weeks, the decision effectively makes all abortions illegal in Florida. The six-week ban that Gov. Ron DeSantis signed in 2023 added further restrictions to the standing exceptions for rape or incest. A woman would need to prove she’s not lying about her violent assault. The state will accept a restraining order or a police report, and after traumatizing her further, she could then receive an abortion provided it’s before 15 weeks.

The abortion ban’s impact isn’t hypothetical. Last year, an estimated 7,000 people traveled to Florida from other states, including Alabama and Texas, for an abortion. North Carolina is now the closest state in the South where abortion is available until 12 weeks, and North Carolina’s current abortion law is garbage.

The challenge to Florida’s abortion ban was based on the state’s right to privacy, which voters had enshrined into the state’s constitution in 1980, and the state Supreme Court has held since 1989’s  In re T.W. that the right to privacy protected abortion access. It should’ve been an open-and-shut case, but the state Supreme Court is stacked with hard-right DeSantis appointees. (Here’s where I remind you that Democrat Andrew Gillum came within about 35,000 votes of beating DeSantis in 2018.)

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The court’s conservative judges invoked originalism — the rhetorical hand-waving they use to ignore precedent and even the law itself and just impose their desired result. It was even more absurd in this instance. We usually see so-called “originalists” interpreting the Constitution based on what they presume was the intent of late 18th Century white men, the infallible geniuses who wiped their bottoms with dried-out corn cobs. Here, the Florida Supreme Court reached back to the distant past of 1980 and declared that voters of the VHS period would not have considered abortion rights protected under a right to privacy. “Based on dictionaries we consulted,” the majority wrote, “we know that in 1980 the right to be ‘let alone’ could be defined as the right to be left in ‘solitude,’ free from outside ‘interfer(ence)’ or ‘attention.’”

This very pro-Unabomber interpretation of “privacy” is flat-out ridiculous. The U.S. Supreme Court decided in Roe v. Wade that the right to privacy, as implied in the 14th Amendment, protected abortion as a fundamental right. That was 1973. It might take a while for current fashions to reach Florida, but seven years was more than enough time for Florida voters to reasonably associate the constitutional right to privacy with abortion access.

“Unsurprisingly, the Supreme Court of Florida has upheld the extreme 15-week abortion ban,” Democratic state Rep. Rita Harris said in a statement. “However, my lack of shock does not replace my concern for the thousands of women who will find themselves over 15 weeks pregnant with a possible life-threatening emergency, unable to access the care they need.”

“With this ruling, Floridians can clearly see that many in power have little regard for the health of pregnant people and the doctors who care for them,” Harris added.

Some good news, maybe?

However, the court narrowly ruled on Monday that a proposed amendment could appear on the November ballot that would enshrine abortion protections in the state constitution. This measure, which requires 60 percent support to pass, would clearly state that abortion is legal, so even these “originalists” couldn’t overturn it — although MAGA judges sort of do whatever they want these days. Note the Florida Supreme Court’s whole Thoreau spin on the right to privacy.

“I am pleased to see that the State Supreme Court has allowed the ballot petition to protect abortion rights to appear on November’s ballot,” Harris said. “This allows the people of Florida to put these awful anti-abortion policies in check.”

Florida Attorney General Ashley Moody, a Republican, tried to block the measure from appearing on the ballot, claiming that the language was too ambiguous. Perhaps she just has trouble with reading comprehension. The proposed amendment plainly states: “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 healthcare provider.” A six-week-old fetus is probably more lucid than Donald Trump Jr. but that still doesn’t make it viable.

The amendment also wouldn’t change existing state law that requires parental consent for a minor seeking an abortion. However, we can expect that desperate Republicans will shamelessly lie about the amendment’s language, just as they tried in Ohio and Missouri. White Christian nationalists claim they represent the majority but they are very afraid of the true majority expressing itself at the ballot box.

Abortion rights are popular. Abortion bans are not.

Ever since the MAGA Supreme Court overturned Roe in 2022, Republicans have forced unpopular abortion bans on the public, but whenever people are able to vote on the issue, they overwhelmingly choose to maintain legal abortion access. That still won’t stop forced-birth legislators, though.

Kansas voters overwhelmingly rejected an anti-abortion amendment in 2022, but Kansas Republicans will soon pass a bill requiring that abortion providers ask patients 11 questions about why they want to terminate their pregnancy, which they’d report to the state in violation of medical privacy and ethics. Abortion providers would have to ask if the patient can’t afford a child, whether raising a child would interfere with their education or career, and if a spouse or partner wants them to have an abortion. It’s a grotesque quiz show format.

Last November, Ohio voters approved a constitutional amendment guaranteeing abortion access, and almost immediately Republicans vowed to undo it. Draft legislation circulated that would give the Republican-controlled legislature “exclusive authority over implementing” the amendment instead of the RINO courts: “To prevent mischief by pro-abortion courts … Ohio legislators will consider removing jurisdiction from the judiciary over this ambiguous ballot initiative.”

This was so over-the-top unconstitutional that even Republican Gov. Mike DeWine suggested it would never become law, but other Republicans are considering passing another referendum undoing the last one. That almost resembles democracy.

The Florida abortion measure will appear on a presidential ballot, which Democrats hope will motivate their voters to the polls. (Florida Democrats seem to schedule their nap time on most Election Days.) There’s even a ballot measuring legalizing marijuana! Unfortunately, there is a documented history of voters in Republican-run states supporting liberal policy initiatives when presented as a separate ballot measure while simultaneously rejecting Democratic candidates on the same ballot. The Republicans they elect don’t feel any obligation to honor or even acknowledge voter preferences.

Trump will have to defend DeSantis’ six-week ban, and Republican Sen. Rick Scott has supported a federal abortion ban. This year, when Florida voters affirm their abortion rights, they should finish the job and stick it to forced-birth politicians up and down the ballot.

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