Amid the weekend’s commemorations of Roe v. Wade and lamentations over Dobbs v. Jackson Women’s Health Organization, some observers acknowledged the elephant in the room: two pending Florida Supreme Court rulings governing abortion rights.
The state’s high court heard oral arguments on Sept. 8, 2023 in a challenge by Planned Parenthood affiliates and other providers to Florida’s 15-week abortion ban but, more than four months later and now in 2024, has yet to issue its ruling.
If the court does uphold the 2022 law, which anticipated the Dobbs ruling that same summer, a second law banning abortions after six weeks’ gestation would take effect 30 days later. That’s before most people realize they are pregnant.
Dobbs is the U.S. Supreme Court ruling that overturned 1973’s Roe decision establishing a constitutional right to abortion.
The second pending case concerns a proposed Florida constitutional amendment overturning both bans. A group called Floridians Protecting Freedom gathered enough petition signatures to place the initiative before voters in November, presuming the Florida Supreme Court approves its ballot language. But that might not be the case.
The court will hear oral arguments in that matter on Feb. 7.
During a news briefing Monday in the Florida Capitol, state Senate Democratic Leader Lauren Book reminded people that the Planned Parenthood ruling could come down “at any time.”
The court typically releases opinions on Thursday mornings but isn’t bound to that schedule. No court rule establishes a deadline for deciding the case, court spokesman Paul Flemming said.
“I’m hopeful that we have a little bit more of a reprieve from that,” Book said of the impending ruling. But still, “It could happen at a point and at any time.”
Whistling past the graveyard? There’s ample ground for pessimism for abortion-rights advocates. Since first assuming office in 2019, the anti-abortion Gov. Ron DeSantis has shifted the state Supreme Court firmly to the right, appointing five of the seven sitting justices.
Chief Justice Carlos Muñiz (DeSantis appointee) was openly skeptical of the abortion-rights case during oral arguments, which tested the court’s 1989 holding that Florida’s 1980 privacy constitutional amendment covered matters of personal autonomy including access to abortion. He even referred to fetuses as “human beings.”
(This even though Muñiz acknowledged in a law review article in 2004 that “one purpose of the privacy amendment clearly was to give the abortion right a textual foundation in our state constitution.”)
Other Democratic women expressed hope the justices would rule favorably on access to abortion, including regarding the constitutional amendment.
Republican Attorney General Ashley Moody and other abortion-rights foes have urged the court to reject the ballot language, but the court isn’t supposed to rule on the underlying political issue, merely whether the language could confuse voters.
That text reads: “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.”
“I do feel confident. And we also saw it in the recreational marijuana case [also pending] that the justices heard. They seemed to be very fair, impartial, and nonbiased, and that’s what we’re hoping will happen with the abortion amendment,” said State Sen. Lori Berman, representing part of Palm Beach County who practices real estate, probate, and trust law.
Geraldine Thompson of Orange County, a nonlawyer but whose lawsuit against the DeSantis administration blocked the governor’s first attempt to place Renata Francis on the Florida Supreme Court, noted that the justices might not feel the need to abide by DeSantis’ anti-abortion policies.
The justices sit for fixed terms, subject to merit-retention elections, but no justice has ever failed of reelection, Thomspon observed. “For all intents and purposes,” she said, they serve “a lifetime appointment.”
“Even though the governor appointed them, they know what the law is, and I believe they’re going to apply it,” Thompson said.
Bob Jarvis, professor of constitutional law at Nova Southeastern University Shepard Broad College of Law, cautioned against drawing any conclusions from the court’s languid schedule.
“Like all courts, the Florida Supreme Court moves at its own pace, and there is no rhyme or reason that outsiders can detect,” Jarvis told the Phoenix by email.
Meanwhile, Anna Eskamani, a House Democrat from Orange County, has been reminding her social media followers to keep an eye on the Florida Supreme Court’s opinion releases.
“I don’t have any intel beyond my own opinion that the court was waiting for the Iowa Caucus to take place,” Eskamani said by email.
Her comment reflects the widely held feeling that DeSantis pressed the hard line on abortion to appeal to conservative voters in early caucus and primary states.
He still lost to Donald Trump in Iowa by nearly 30 percentage points and suspended his presidential campaign.
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