Florida Will Now Be Ground Zero for the Abortion Wars in 2024

Mark Joseph Stern / Slate
Florida Will Now Be Ground Zero for the Abortion Wars in 2024 Governor Ron DeSantis of Florida. (photo: Joe Raedle/Getty Images)

ALSO SEE: Florida Court Clears the Way for Ballot Measure on Abortion Rights – While Granting 6-Week Ban

The Florida Supreme Court upheld the state’s right to ban abortion on Monday, with devastating consequences for the women of Florida, who will live under one of the most draconian abortion bans in the country. With this ruling and two others issued on Monday, however, the court turbocharged the state’s 2024 election, centering the upcoming vote around abortion rights and other personal freedoms. First, by a 6–1 vote, the conservative supermajority abolished the right to abortion under the state constitution, overruling decades of precedent in the process. Its decision greenlights the six-week ban championed by Gov. Ron DeSantis and Republican legislators, effectively ending legal abortion access throughout the entire South when the ban goes into effect on May 1. Next, by a 4–3 vote, the court allowed a ballot initiative that would enshrine abortion rights in the state constitution onto November’s ballot; this decision gives voters a chance to overturn the six-week ban and establish Florida as the sole haven for reproductive care in the South. Finally, by a 5–2 vote, the court approved another initiative that would legalize recreational marijuana in the state, rejecting DeSantis’ strenuous effort to keep the question off the ballot. The initiatives on abortion and marijuana will require 60 percent approval to pass.

This trio of decisions constitutes a legal and political earthquake. The Florida Supreme Court has protected access to abortion under the state constitution’s right to privacy for 35 years; now, in one fell swoop, the conservative supermajority has overturned that entire line of precedent. But a bare majority also let Florida voters have the final say on reproductive freedom, teeing up a momentous battle over personal liberty in a presidential election year. If that were not enough, the majority also defied DeSantis’ crusade to prevent marijuana legalization from going to the voters, giving residents the chance to greenlight recreational sales long after many other states have made the move. Florida remains a red state dominated by Republican lawmakers and judges. And the consequences for women in Florida and the surrounding area will be horrific in the coming months. But Democrats could not have asked for a better set of issues to campaign on.

The court’s split decision on reproductive rights should not obscure the reality that it has essentially ended legal abortion in the state. DeSantis has signed two major abortion bans: one beginning at 15 weeks and another at six weeks, before most people even know they’re pregnant. Monday’s ruling upheld the 15-week ban and allowed the six-week ban to take effect in 30 days. Since the fall of Roe v. Wade, Florida has served as a sanctuary for abortion access, treating a surge of patients from nearby states with stringent bans; soon, these patients will have to travel hundreds of miles farther for care. For instance, Kate Cox traveled from Texas to Florida to terminate her failing pregnancy after Texas courts decided that her complications did not pose a sufficient danger to her life to justify an abortion. Now Florida will join Texas on the list of states that make abortion criminal under virtually all circumstances, and patients like Cox will have to flee elsewhere. Those with time to spare may travel to Virginia, the closest state with broad abortion access. Those in immediate medical peril will simply have to wait until they are close enough to death to terminate under Florida’s stringent law.

What’s exasperating about the Florida Supreme Court’s decision is that, unlike the U.S. Constitution, the Florida Constitution explicitly guarantees a right to privacy—the basis for SCOTUS’ decision in Roe v. Wade. Floridians amended their constitution to protect privacy rights in 1980, seven years after Roe. And since 1989, the Florida Supreme Court has interpreted this guarantee to safeguard abortion access. Yet Justice Jamie Grosshans, writing for the majority, declared on Monday that the court had gotten it wrong all these years. (Grosshans was appointed by DeSantis, as were all but one of the justices who joined her.) This precedent, she wrote, is “clearly erroneous,” because the “original, public meaning” of the privacy amendment did not encompass reproductive autonomy. For proof, Grosshans undertook a “historical survey” of the 1980 campaign for the initiative and found no “robust public debate” about abortion. She concluded that “the public would not have understood, or assumed, the language of the [amendment] to encompass abortion.”

Grosshans only reached this conclusion by ignoring or downplaying ample evidence that Floridians did, in fact, link the initiative with abortion and discuss its impact on reproductive health throughout the 1980 election. Justice Jorge Labarga, the lone dissenter, canvassed this history to demonstrate that “the dominance of Roe in the public discourse makes it inconceivable that in 1980, Florida voters did not associate abortion with the right of privacy.” He also protested that his colleagues should respect the reliance interests created by 35 years of precedent interpreting the amendment to shield reproductive decisions. Labarga’s pleas, however, were in vain: DeSantis selected his justices with an eye toward this issue, picking hard-right ideologues with a record of hostility toward abortion to guarantee a favorable ruling down the road. It was a foregone conclusion that a court stacked with DeSantis appointees would overrule abortion rights by any means necessary.

And yet, the court refused to give DeSantis a complete victory: In a separate decision, a bare majority allowed Floridians to enact a constitutional amendment expressly protecting abortion this November. (Again, it will require 60 percent approval to pass.) Pro-choice advocates gathered enough signatures to put this question on the ballot, but DeSantis’ administration tried to block it by arguing that its title was somehow “misleading.” Florida Attorney General Ashley Moody, backed up by anti-abortion activists, argued that the initiative’s title—“Amendment to Limit Government Interference with Abortion”—constituted “inflammatory political rhetoric” and failed to convey the impact it would have on Florida law.

The majority easily spurned these objections as meritless distractions. Yet three dissenters—Grosshans along with Justices Renatha Francis and Meredith Sasso—would have shot down the amendment. They embraced a version of the fetal personhood argument, asserting that the initiative should have clarified that it would strip equal protection from fetuses, which the dissenters describe as “natural persons” with their own constitutional rights.

DeSantis and Moody’s objections to the ballot initiative on recreational marijuana were also frivolous; only Francis and Sasso could muster dissents in that case. Florida already has a robust medical marijuana market, and this amendment seeks to extend legal sales to all adults over 21. In 2021, the Florida Supreme Court blocked a nearly identical initiative on highly dubious grounds; it decision on Monday suggests that a majority has given up the battle against legal weed. Why? Over the past few years, the cannabis industry has spent huge sums of money currying favor with the Florida GOP, and many Republican lawmakers have dropped their opposition to a recreational market. The court’s about-face on the matter suggests that several conservative justices, too, have grown more favorable toward this massively booming industry.

As governor, DeSantis frequently touts his staunch advocacy for freedom, pitching Florida as a refuge for liberty-loving Americans who just want to be let alone. Monday’s decisions, though, highlight his passion for wielding the machinery of the state to interfere with some of the most private decisions a person can make. In seven months, Floridians will have an opportunity to undo both his assault on reproductive rights and his war against legal marijuana if they can reach the 60 percent threshold. These issues are bound to dominate the discourse leading into the election, and Republicans’ positions on both poll terribly with the electorate. A large majority of Americans support legal access to both abortion and cannabis. Florida Democrats are already planning to put these topics at the center of their campaign. It’s no wonder DeSantis fought to keep them from getting a vote. Individual freedom will be on the ballot in November, decided through a democratic process that the governor tried relentlessly to obstruct.

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