Florida Supreme Court Allows Abortion Ban, but Final Decision Will Go to Voters

The Florida Supreme Court issued three opinions Monday that could have a serious impact on reproductive care in Florida and the 2024 presidential election. One upheld a 15-week abortion ban, and the other two approved the inclusion of proposed constitutional amendments on the November ballot — one of those would protect abortion, the other would legalize the use of recreational marijuana for adults.

In Planned Parenthood of Southwest and Central Florida v. State of Florida, the justices ruled 6 to 1 that the right to abortion is no longer covered by the Florida Constitution. To reach this conclusion, the court had to overrule its own decades-old precedent that the state constitution’s privacy protections applied to abortion. The Florida Constitution includes “the right to be let alone and free from governmental intrusion into . . . private life.” 

The case was a challenge to Florida’s 15-week abortion ban, but the decision now triggers a 6-week abortion ban that will go in effect in 30 days. Planned Parenthood and other abortion advocates can challenge the 6-week ban, but that will take additional years of litigation.

The Florida Supreme Court would almost certainly uphold the 6-week ban given the language of Monday’s opinion. It concluded that there is a “tenuous connection between ‘privacy’ and abortion — an issue that, unlike other privacy matters, directly implicates the interests of both developing human life and the pregnant woman.” It also asserted that “the legislature had the authority to comprehensively regulate abortion before and after viability. Indeed, from at least 1868 to 1972, abortion was for the most part prohibited in our state,” which seems designed to insinuate it’s the normal state of affairs for abortion to be banned in Florida. Justice Meredith Sasso’s concurrence stated the proposition more succinctly: “The Florida Constitution does not contain a right to elective abortion.” The 49 years when Roe v. Wade was the law of the land and abortion was legal in Florida didn’t matter to the majority.

But the court took another action Monday that could end up undoing the Planned Parenthood decision. The Florida Supreme Court simultaneously issued an advisory opinion saying that a proposed constitutional amendment that explicitly protects the right to abortion up until the point of fetal viability or when necessary to protect pregnant person’s health can be on the November ballot. This would protect the reproductive rights of women in Florida up to approximately 24 weeks of pregnancy, which was the law before the Florida legislature enacted its 15– and 6-week bans.

Justices Renatha Francis, Jamie Grosshans, and Meredith Sasso dissented and would have prevented voters from voting on abortion — all three were appointees of Gov. Ron DeSantis. Meanwhile. Francis and Sasso are facing retention elections this fall and could be removed from office by voters.

Thus, Florida voters to get to decide in November 2024 whether they agree with the 6-week abortion ban or want to restore access to pre-viability abortions for women in Florida. In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court said it was returning the question of regulating abortion “to the people and their elected representatives.” When abortion rights were on the ballots in other states, reproductive rights have won. 

In addition, a third opinion by the Florida Supreme Court on Monday approved for this fall’s ballot the question of legalizing the recreational use of small amounts of marijuana. When presented with similar proposals in other states in 2020, voters generally approved the liberalization of drug laws.

Under Florida law, passing proposed constitutional amendments requires 60 percent of the vote. A simple majority vote will not be enough to legalize recreational marijuana or undo the abortion ban.

This trio of decisions from the Florida Supreme Court could scramble the make-up of the state electorate in a presidential election year, with both the abortion and marijuana amendments having the potential to drive up voter participation.

Ciara Torres-Spelliscy is a professor of law at Stetson University College of Law and a Brennan Center fellow and the author of the forthcoming book Corporatocracy.