After being thoroughly remade by a popular Republican governor, the Supreme Court in one of the nation’s largest states has upheld a protective pro-life law which allows an even stronger protection to take effect. But the court also authorized a ballot initiative that could erase nearly all pro-life laws in America’s third most populous state.
In a near-unanimous (6-1) ruling, the Florida Supreme Court approved a bill prohibiting abortion after 15 weeks gestation. The Reducing Fetal and Infant Mortality Act “protects babies in the womb who have beating hearts, who can move, who can taste, who can see, and who can feel pain,” said Governor Ron DeSantis (R), who appointed five of the seven sitting justices, when he signed the bill in April 2022. The ruling also paves the way for a more protective pro-life law, which extends human rights to six weeks post-gestation, to take effect next month.
“Good news for life!” said Family Research Council President Tony Perkins. “This ruling by the Florida Supreme Court upholds the state’s 15-week protection of unborn life and allows the state’s new heartbeat law — protecting unborn babies at six weeks — to go into effect in May.”
However, a narrower, 4-3 majority allowed a coalition of abortionists and their lobbyists to put forward a measure, Proposition 4, which would insert a constitutional right to virtually unlimited, late-term abortion in the state constitution. The court also authorized a ballot initiative to legalize recreational marijuana use.
Mat Staver of Liberty Counsel called the ruling the “culmination of 35 years of work.” Staver, who has argued before the court, told “Washington Watch” guest host Jody Hice that the issue began with a 1989 ruling when “the activist liberal Florida Supreme Court at that time twisted this 1980 constitutional amendment that had nothing to do with abortion, but was about the privacy of your documents, to apply to abortion.”
In the case — Planned Parenthood of Southwest and Central Florida v. State of Florida — the majority ruled that Florida’s Supreme Court had wrongly interpreted the word “privacy” in an unrelated statute through the lens of the 1973 Roe v. Wade ruling, which has since been overturned. The 1989 Supreme Court decision “associated the language of the Privacy Clause with Roe’s understanding of privacy; but it did not justify how that concept of privacy aligned with our constitution’s text,” the court ruled Monday. The earlier court “also did not ask how Florida voters would have understood the text of the provision and how that understanding would be informed by Florida’s long history of proscribing abortion.”
The decision removes a roadblock to the Heartbeat Protection Act, signed by DeSantis last April, which protects unborn children from abortion the moment a doctor can detect a fetal heartbeat, usually around six weeks. Legislators, noting the legal action over the 2022 law, included a provision in the heartbeat bill that it would not take effect until one month after justices upheld the less protective law. The Heartbeat Protection Act will take effect on May 1.
Pro-life leaders sounded notes of hope, mixed with trepidation, over the two abortion decisions. “We are pleased that Florida’s laws protecting preborn children were upheld. However, the court is allowing an extreme and detrimental ballot measure to move forward,” said Carol Tobias, president of the National Right to Life Committee. “Florida has made tremendous advances in protecting innocent human life and providing support for mothers. This ballot initiative would destroy Floridians’ hard work in creating a culture that supports and protects life.”
“Today’s victory for unborn children who have a heartbeat and can feel pain is in line with the views of the majority of Floridians who want to protect babies and serve mothers and families,” said SBA Pro-Life America State Policy Director Katie Daniel, in a statement emailed to The Washington Stand. “As Florida faces what may be its biggest ballot fight yet, Governor Ron DeSantis must be at the forefront of protecting Florida from Big Abortion’s attempt to eliminate the rights of unborn children, parents, women, and girls” and “lead in defending those protections,” Daniel told TWS.
Proposition 4
In a second ruling, justices also approved the language of a ballot initiative that would expand late-term abortion. The amendment is supported by “Floridians Protecting Freedom,” who describes itself as a coalition of “over 200 local, statewide, and national organizations” but lists just six groups, including Planned Parenthood, the ACLU, and the 1199 Service Employees International Union (SEIU).
Proposition 4 states: “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”
Opponents say the language is “misleading” and unconstitutionally vague. For instance, Staver noted on “Washington Watch” that the term “healthcare provider” encompasses “about 58 different categories, which includes non-medical personnel such as a 911 operator, a massage therapist, an orthotic shoe fitter, the assistant to the orthotic shoe fitter, a tattoo artist, and the list goes on.”
The inclusion of an exception for the patient’s “health” builds on the precedent established in the 1973 Supreme Court case Doe v. Bolton, allowing an abortion for virtually any reason, including mental and financial reasons. “Really, no abortion would be prohibited through all nine months of pregnancy up to and including birth if this passes,” Staver told Hice.
In a powerful dissent, Justice Jamie Grosshans wrote:
“A voter may think this amendment simply returns Florida to a pre-Dobbs status quo. It does not. A voter may think that a healthcare provider would be clearly defined as a licensed physician specializing in women’s health. It is not. A voter may think that viability falls within a readily apparent time frame. It does not. A voter may think that the comma is an insignificant grammatical tool that would have very little interpretive purpose. It will not. And, critically, the voter may think this amendment results in settling this issue once and for all. It does not. Instead, this amendment returns abortion issues back to the courts to interpret scope, boundary, definitions, and policy, effectively removing it from the people and their elected representatives. Perhaps this is a choice that Floridians wish to make, but it should be done with clarity as to their vote’s ramifications and not based on a misleading ballot summary.”
“I presented part of the oral argument at the court, and the chief justice really got the concern nailed down. He said the voters aren’t being informed that this law can impact other existing laws that recognize the humanity of the unborn child, laws that are criminal, civil wills and trusts, guardianship laws,” Staver told Hice.
Pro-life advocates have dug in for a long fight against the amendment. “We must oppose Proposition 4. Not only will this measure bring dangerous late-term abortions back to Florida, but it will allow girls who aren’t old enough to get their ears pierced on their own get an abortion without” parental consent, said Daniel.
“In a state where 25% of abortion centers failed inspections, it’s no surprise they want to be completely unregulated to increase their profits at the expense of women, girls, and babies,” Daniel, a Tampa resident, told TWS. “Those girls and the women who have abortions will be put at risk when this measure eliminates every abortion health regulation on the books.”
Democrats seized upon the two Supreme Court rulings to tout their viability in November. Biden’s campaign manager, Julie Chávez Rodríguez, believed the rulings gave the president and his party an “opening” in the increasingly Republican state. Christina Reynolds, senior vice president of communications for EMILY’s List, said although “we’ve had our heart broken before” in Florida, she hopes the ballot initiative “draws some focus to Florida that might otherwise not be there.”
All parties acknowledge it would be difficult to defeat President Trump, who lives in his 17-acre Mar-a-Lago estate in Palm Beach. And Republicans have determined not to back down from abortion as a campaign issue in 2024.
The ballot initiative will prove an uphill fight, especially as many party leaders have devoted little money to opposing the well-funded abortion industry’s expansion in a string of state elections. Staver said the “silver lining” in the Proposition 4 ruling is “we could bring another challenge to have the court rule on the personhood of the child based upon the Florida constitution itself.”
But in the meantime, pro-life advocates rejoice over the collective impact Governor DeSantis’s political and judicial decisions will have on the unborn.
“Thousands of lives will be saved by this law,” said Live Action founder Lila Rose.
AUTHOR
Ben Johnson is senior reporter and editor at The Washington Stand.
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