Making Sense of the Mess in Florida’s Abortion Access Landscape

A radical ruling from a majority of DeSantis appointees on Florida's supreme court follows the Dobbs playbook.

The Florida Supreme Court is giving voters an opportunity to decide whether to enshrine abortion rights, but it's still allowing a six-week ban to take effect. Cage Rivera/Rewire News Group illustration

This piece first appeared in our weekly newsletter, The Fallout.

The Florida Supreme Court on Monday took a page from Dobbs v. Jackson Women’s Health Organization and swept away over 30 years of legal precedent to rule the Sunshine State’s constitution does not protect abortion. The ruling upholds Florida’s existing 15-week abortion ban and paves the way for an even more restrictive six-week abortion ban to take effect May 1. The effects on abortion access in the region will be devastating.

The decision and the underlying fight that prompted it is complicated. Abortion rights advocates had challenged Florida’s 15-week ban, arguing it violated privacy protections guaranteed in the Florida Constitution. That provision had been approved by voters in 1980 and interpreted by Florida courts, including the state supreme court, to protect abortion rights.

In Monday’s 6-1 decision, the Florida justices—five of whom Gov. Ron DeSantis appointed—ruled, essentially, that because that earlier precedent relied on the privacy framework established in Roe v. Wade, the current Florida Supreme Court was not bound to it. With that justification, the court went on to uphold the 15-week ban.

Here’s where it gets slippery. While this lawsuit was pending, the Florida legislature passed an even more restrictive six-week abortion ban. But that six-week ban had a trigger in it, preventing it from taking effect pending a decision from the Florida Supreme Court on the constitutionality of the 15-week ban. Now that the Florida Supreme Court has weighed in and affirmed the 15-week ban, the more restrictive one can also take effect.

What a mess—and it’s not even close to over, either. That’s because in a separate ruling, the Florida Supreme Court decided that a ballot initiative designed to expressly enshrine the right to abortion until the point of viability into the state constitution can be placed on the November ballot, giving voters a say whether to restore access in the state.

Like I said earlier, what unfolded this week in Florida is straight out of the Dobbs playbook. Politically motivated justices created their own historical reality to justify rewriting the law to erase abortion rights.

And while it’s good that voters will have an opportunity to weigh in on the issue in November, Florida voters and the courts already decided to protect abortion rights in the state constitution in 1980 when they enacted the Privacy Amendment—the DeSantis justices just didn’t agree with that decision, so they changed it. What is to stop those same justices from concocting some different reason to thwart the will of Florida voters if the ballot initiative passes in November?

These are not principled decisions grounded in the rule of law. They are exercises of political power.