FORT LAUDERDALE, Fla. — The next few weeks could bring a major change in Florida when it comes to abortions.
July 1 looms as the effective date of a new law signed by Gov. Ron DeSantis that bans most abortions after 15 weeks of gestation. The state law does not make exceptions for incest, rape or human trafficking, but does allow abortions if the mother’s life is in danger or if two doctors agree the fetus has a fatal abnormality.
Several legal actions, however, could prevent it from going into effect — at least temporarily. Below we detail the legal actions that may play out.
A temporary pause is possible
Two lawsuits have been filed that challenge the new state law blocking abortion after 15 weeks.
The first lawsuit was filed by the American Civil Liberties Union of Florida on behalf of a group of abortion providers and abortion rights organizations. It contends that the ban violates a privacy clause in Florida’s Constitution that includes the right to terminate a pregnancy.
A second lawsuit was filed earlier this month by a Boynton Beach synagogue, Congregation L’Dor Va-Dor, saying the ban violates the state constitution’s right to privacy and freedom of religion.
A hearing on a preliminary injunction — a temporary pause — of the Florida abortion law is likely within the next two weeks. Were that to happen, abortions would continue, for now, to be legal in Florida up to 24 weeks, the current limit.
“Basically, Florida’s new law would be frozen until the lawsuits could be resolved on their merits,” said Louis Virelli, a professor of constitutional law at Stetson University College of Law in Tampa Bay. “Under the current interpretation of the Florida Constitution, the lower courts should feel comfortable freezing it.”
Of course, an appeals court or the Florida Supreme Court could block a preliminary injunction. In that case, abortion would be banned after 15 weeks while the appeals court or Florida Supreme Court considers whether the legal challenges to the ban have any merit. It could be months before the legal challenges go through the lower courts.
In a written statement, DeSantis’ office said it “is confident that this law will ultimately withstand all legal challenges.”
Florida Supreme Court may weigh in
Florida is one of 11 states whose state constitutions put in place abortion rights independent of the U.S. Constitution. Florida does so by extending privacy rights in its constitution to include a woman’s decision of whether or not to continue her pregnancy.
Ultimately, the legal challenges to the constitutionality of the new state law are likely to end up in the Florida Supreme Court, says Robert Jarvis, who teaches constitutional and contract law at Nova Southeastern University in Davie.
The Florida Supreme Court has become more conservative, with four of the seven judges having been appointed by Republican governors. The more conservative state justices could interpret the privacy rights in Florida’s constitution differently.
Virelli said doing so would be a “bold step.”
He explained: “The Florida Supreme Court would have to change its understanding of the Florida Constitution and its interpretation of privacy rights and overturn 30 years of precedent.”
Jarvis and Virelli agreed that it’s unlikely the current conservative Florida Supreme Court would strike down any abortion law the Florida Legislature has passed, or a more restrictive one in the future.
US Supreme Court will play a role, too
While legal issues on abortion rights are being decided in Florida courts, the fate of the 15-week ban will be affected by what happens in the nation’s capital.
Two scenarios are plausible, but only one would affect Florida’s abortion rights.
The U.S. Supreme Court is expected to rule this month on whether to uphold a 15-week abortion ban in Mississippi. Its ruling on that Mississippi law could strike down the landmark Roe v. Wade case that has guaranteed the right to abortion in the United States for decades.
For Florida, that only matters if the U.S. Supreme Court strikes down Mississippi’s ban. If it says the 15-week ban is unconstitutional under federal law, then Florida’s new abortion law would be unconstitutional as well.
Of course, if the U.S. Supreme Court rules to uphold Mississippi’s 15-week ban, then Florida’s ban is constitutional under federal law, but that decision does not indicate whether the law violates the right to privacy protected by the Florida Constitution. Virelli said that determination would ultimately be left to the Florida Supreme Court.
A leaked draft opinion in the Supreme Court case indicated justices could use the Mississippi case to overturn the landmark Roe v. Wade that established the right to an abortion in the United States. At least 18 states either have kept pre-Roe v. Wade abortion bans in place or have passed so-called “trigger” laws to ban abortion the moment Roe v. Wade is overturned.
Florida does not have a “trigger” law. However, if Roe v. Wade were overturned, there would be nothing stopping legislators from banning abortion completely in the state.
“Unless things go unexpectedly, Roe v. Wade will be overturned before July 1,” Jarvis said. “In Florida, ultimately, whatever happens with Roe, the question of abortion will have to go to the Florida Supreme Court, and when it gets there, I have no doubt there will be no state right to have an abortion.
“The bottom line is sooner or later abortion will be illegal in Florida.”
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