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Florida Supreme Court allows 6-week abortion ban to take effect, but voters will have the final say

The state Supreme Court ruled that a proposed amendment to enshrine abortion rights in the state constitution can appear on the ballot in November.
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In a pair of significant decisions Monday, the Florida Supreme Court upheld a 15-week ban on abortion in the state while also allowing a proposed amendment that would enshrine abortion protections in the state constitution to appear on the November ballot.

The conservative-leaning court's decision on the 15-week ban also means that a six-week abortion ban, with exceptions for rape, incest and the life of the woman, that Gov. Ron DeSantis signed into law last year will take effect.

But the bench's ruling to allow the constitutional amendment to appear on the ballot this fall means voters will have a chance in just seven months to undo those restrictions.

Republicans have made multiple moves over the nearly two years since the U.S. Supreme Court overturned Roe v. Wade to restrict access to abortion.

In 2022, DeSantis, a Republican, signed a 15-week abortion ban passed by the GOP-controlled Legislature that was almost immediately challenged in court.

Then, in April 2023, just weeks before he announced his presidential campaign, he signed a ban after six weeks before many women even know they're pregnant which was also immediately challenged.

In reviewing the initial challenge to the 15-week ban, the state Supreme Court had said the six-week ban would remain blocked until it ruled on the 15-week proposal. 

In its ruling Monday, the court’s justices wrote in a majority opinion, “Consistent with longstanding principles of judicial deference to legislative enactments, we conclude there is no basis under the Privacy Clause to invalidate” the 15-week statute.

They added that Planned Parenthood, the plaintiff, “cannot overcome the presumption of constitutionality and is unable to demonstrate beyond a reasonable doubt that the 15-week ban is unconstitutional.”

As a result, the justices concluded, the “six-week ban will take effect in thirty days.”

At the same time, their ruling on the proposed amendment will allow Florida voters to effectively decide whether to keep the six-week ban in effect.

A woman holds a sign that reads "Keep Abortion Legal"
Faith Halstead chants along with other protesters and activists near the Florida State Capitol in Tallahassee on April 3, 2023.Octavio Jones for The Washington Post via Getty Images file

In allowing the proposed amendment to appear in November, the justices embraced a straightforward interpretation of their responsibility under the law in approving ballot measures: making sure the proposed language isn’t confusing, unclear or misleading and making sure it doesn’t cover more than one subject.

“We approve the proposed amendment for placement on the ballot,” the justices wrote in their opinion.

They added that the intention of the measure's sponsors was clear and that opponents' philosophical disagreement with didn't merit its being struck from the ballot.

"That the proposed amendment’s principal goal and chief purpose is to limit government interference with abortion is plainly stated in terms that clearly and unambiguously reflect the text of the proposed amendment. And the broad sweep of this proposed amendment is obvious in the language of the summary," they wrote. "Denying this requires a flight from reality."

Reproductive rights groups and Democrats simultaneously slammed the decision on the ban and lauded the decision on the ballot measure — while highlighting that the disparate rulings significantly raise the stakes of the November election.

President Joe Biden, in a statement, slammed the ban ruling as an "extreme decision" that "puts desperately needed medical care even further out of reach for millions of women in Florida and across the South," while also drawing attention to the fact that voters in the state "will have the opportunity to make their voices heard in support of a reproductive freedom ballot initiative this November."

Florida Alliance of Planned Parenthood Affiliates Executive Director Laura Goodhue said in a statement that, “We’re thrilled the Court has let the voters decide the fate of abortion access in Florida."

But she added, "This comes at the same time they have allowed a 6-week ban to go into effect, making this initiative more important than ever.”

Jessica Mackler, the president of EMILYs List, a national Democratic group that supports pro-abortion-rights women running for office, said in a statement: “The stakes for protecting reproductive freedom in Florida have never been higher. With a near-total abortion ban set to go into effect in 30 days, essential health care will be pushed out of the hands of millions because of this Florida Supreme Court decision. But Floridians have the opportunity to fight back against this Republican law that strips them of their bodily autonomy just like voters have in every other abortion ballot initiative across the country."

Conversely, anti-abortion-rights groups celebrated the ruling on the ban and slammed the ballot measure while also noting the conflicting decisions raise the stakes of the November election.

DeSantis spokesperson Jeremy Redfern said that the governor agreed with the dissenting opinion and that the measure "is misleading and will confuse voters."

Florida Voice for the Unborn Executive Director Andrew Shirvell said his group was "profoundly disappointed in the Florida Supreme Court" for allowing the ballot measure to advance while calling the decision paving the way for the six-week ban to stand a "silver lining in an otherwise dark day for Florida’s unborn children.”

Monday's decision on the proposed amendment had been the last major obstacle in the red-leaning state in the path for the measure to appear on the ballot this fall.

Under Florida law, the measure will have to receive the support of 60% of voters in November — not a simple majority — to pass.

Reproductive rights groups had surpassed the required number of valid signatures in the state needed for the measure, which state officials have already announced as "Amendment 4," to appear on the general election ballot.

But under Florida law, the state Supreme Court must review the proposed language of any citizen-initiated constitutional amendment before it can formally advance.

The proposed amendment would bar restrictions on abortion before fetal viability, considered to be at about the 24th week of pregnancy. That means it would invalidate the six-week ban. It would also include exceptions past that point for “the patient’s health, as determined by the patient’s healthcare provider.”

Allowing the measure to appear in November could also have political consequences: Putting the decision to expand access to abortion in the hands of voters could help drive turnout in Florida among Democrats, as well as independents and Republicans who strongly support reproductive rights. That could boost the prospects of Democrats up and down the ballot in the state, where key races for president and the U.S. Senate this year are likely to be closely decided.

Underscoring that possibility, Biden's re-election campaign, in a memo released moments after the decisions came down, said it sees the state as winnable, largely because abortion rights has been such a strong issue for Democrats.

"Abortion rights will be front and center in Florida this election cycle," Julie Chávez Rodríguez, Biden’s campaign manager, wrote in the memo.

The effort by pro-abortion-rights groups in Florida to place the ballot measure is one of at least 11 across the U.S. seeking to put abortion rights directly in the hands of voters in 2024.

Advocates on both sides of the issue had long viewed the state Supreme Court’s review of the proposed amendment as conservatives’ best chance to stop the measure from appearing, mostly because of the court’s ideological makeup: Five of the seven justices were appointed by DeSantis, a fierce opponent of abortion.

The court's review was aided by a robust challenge from anti-abortion conservatives, including Republican state Attorney General Ashley Moody, who contended that the ballot language was designed to mislead voters.

Moody’s challenge specifically urged the court to prevent the question from appearing on the ballot altogether. She slammed the measure as an effort to “hoodwink” voters because abortion-rights supporters and opponents have different opinions about the definition of fetal viability.

Despite its ideological makeup, the conservative court signaled during opening arguments last month that it as likely to let the amendment appear. 

And despite having doled out tough questions to the attorneys representing Floridians Protecting Freedom, the abortion rights group leading the ballot effort, the judges were even harsher in their commentary to attorneys for the state.

“It’s pretty obvious that this is an aggressive, comprehensive approach to dealing with this issue,” Chief Justice Carlos Muñiz said at one point, shooting down an argument that the ballot language was confusing. “The people of Florida aren’t stupid. They can figure out what this says.”

The court's deadline to approve or reject the proposed language was Monday.