Two long sentences handed down this Monday by the Florida Supreme Court will mark the future of abortion in the State. In a 98-page ruling, The court, with a conservative majority, ratifies the application of the 2022 law that limited the term of abortion to 15 weeks and does so in such a way that in 30 days a new reform that limits it to six weeks will be applied. At the same time, however, the judges have ruled in another 81 page ruling that an initiative to protect the right to abortion in the state Constitution be submitted to a referendum, a decision of great significance. Florida has about 22 million inhabitants.
Florida Governor Ron DeSantis, Republican, has pushed a conservative agenda that includes very strict limits on abortion. Planned Parenthood, the most powerful pro-abortion organization in the country, appealed the 2022 deadline law that limited abortion to the first 15 weeks of gestation, which could only be exceeded in case of risk to the life or physical health of the mother or of fetal malformation. This legislation, similar to that in force in Spain, is considered very restrictive in the United States.
The appeal alleged that the Florida Constitution guarantees “the right to be left alone and free from government interference in (…) private life” and that a law that prevented abortions after a longer period of time violated that right.
In a ruling handed down by six votes to one, the judges reject that argument. “The parties have presented thoughtful arguments about the scope of this provision, which has traditionally been called the 'Privacy Clause'. These legal arguments about the meaning of the Privacy Clause are, in our opinion, distinct from the serious moral, ethical and political questions involved in the subject matter of this case. Our analysis focuses on the text of the Privacy Clause, its context, and the historical evidence surrounding its adoption. “After considering each of these sources and consistent with long-standing principles of judicial deference to legislative enactments, we conclude that there is no basis under the Privacy Clause to invalidate the rule,” the ruling says.
“In doing so, we depart from our previous decisions in which – based on reasoning that the United States Supreme Court has rejected – we held that the Privacy Clause guaranteed the right to receive an abortion until the end of the second trimester,” it adds.
The ruling draws on the doctrine of the Supreme Court that repealed the right to abortion throughout the country in 2022 and referred its regulation to the States. Based on the new federal constitutional jurisprudence, state judges also reinterpret the Florida Constitution.
The ruling validates the ban on abortion after 15 weeks, but in practice, it also implies the entry into force within 30 days of the so-called heartbeat law, which limits the period to six weeks, a period in which that many women are not even aware of being pregnant, according to pro-abortion organizations. The vast majority of abortions are performed before 15 weeks.
The text of the six-week law stated that the ban would take effect 30 days after any of the following events: A decision by the Florida Supreme Court holding that Florida's constitutional right to privacy does not include the right to abortion ; a decision by the judges that ratified the 15-week ban; a change in case law from the same court or an amendment to the Florida Constitution clarifying that Florida's constitutional right to privacy does not include the right to abortion. “Today's decision involves three of these four events, meaning the Act's six-week ban will take effect in 30 days,” highlights a particular opinion of the sentence.
A referendum in November
The judges, however, have issued another ruling, in this case by four votes to three, in which they give way to submitting to a vote in a referendum, coinciding with the presidential and legislative elections next November, an amendment that shields the right to abortion in the state Constitution. The four men on the court have voted in favor of giving way to the referendum and the three women, against.
The constitutional reform proposal is titled “Amendment to Limit Government Interference in Abortion,” and states: “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the health of the patient, as determined by the patient's healthcare provider. This amendment does not change the constitutional authority of the Legislature to require notification to a parent or guardian before a minor undergoes an abortion.”
In this case, the court did not have to rule on the substance of the measures, but only on whether the referendum proposals meet the requirements of clarity and do not violate the state Constitution's mandate that they only cover one subject.
The ruling rejects Republican Attorney General Ashley Moody's argument that the proposed amendment is misleading. Voters, she alleged, will not realize the extent to which she will expand access to the procedure by deferring to “the patient's health care provider” and not considering whether the health in this case may be psychological.
They also rejected the argument that the measure violates the single-issue voting clause because it would allow abortion before the fetus is viable and for the health of the mother. Opponents had argued that some voters might approve allowing abortions to protect the mother's health but would reject allowing unrestricted abortions before viability. They stated that they are different issues.
The judges they say in the sentence that under both Florida and federal law, “abortion has historically involved two important interconnected issues: the viability of the fetus and the health of the mother.” “The mere fact that voters may not agree with the entire amendment does not make it a violation of the single subject requirement,” they explain.
Republican Gov. Ron DeSantis' office issued a statement criticizing the ruling and supporting “the three women on the Court who got it right.” He appointed the three women to the court and two of the four men. “This amendment is misleading and will confuse voters,” the statement, cited by the AP, said. “The language obscures the true purpose of the amendment to mandate that abortions be allowed up to the moment of birth,” he adds.
Florida has become a state with a clear Republican majority. Even so, the times that the right to abortion has been put to a referendum since the 2022 Supreme Court decision in both conservative and progressive states, the majority of citizens have voted in its favor. Democrats count on abortion as a key issue to mobilize their electorate. Even so, turning around the Republican majority in Florida seems very complicated.
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