Sometime before its session ends this summer, the Supreme Court is likely to either eliminate the federal right to abortion or, at a minimum, significantly scale it back. That ruling will be made in the case of Dobbs v. Jackson Women’s Health Organization, which is expected to overturn precedent to find that banning abortion after 15 weeks doesn’t violate the Constitution. Currently, it is unconstitutional to ban abortion before viability, which occurs around 24 weeks of pregnancy and marks the point at which a fetus can survive outside the uterus.
In anticipation, Republican-controlled states such as Florida are rushing to pass their own bans. Gov. Ron DeSantis, who has his eye on the 2024 presidency, signed into law Thursday the state’s own 15-week abortion ban. While the law contains exceptions for abortions after 15 weeks to save a woman’s life or if the fetus has a fatal abnormality, there are no exceptions for rape or incest.
State constitutions and courts can — and have, in Florida’s case — provide their own abortion protections.
Yet these lawmakers may be in for a rude awakening. The Supreme Court decision will decide the scope of protection under the U.S. Constitution. But the United States has both federal and state governments, something Republicans are often eager to point out. In addition to the federal Constitution and federal courts, there are state constitutions and state courts. Those state constitutions and courts can — and have, in Florida’s case — provide their own abortion protections.
The U.S. Constitution establishes a floor, rather than a ceiling, of protection for individual rights. States may opt to provide greater protection than the federal government does through their laws or constitutions. This is why even if the Supreme Court eliminates federal constitutional protection for the right to abortion, abortion does not become illegal everywhere overnight. Instead, its legality will turn on state law.
In Florida, the new 15-week ban will collide with the state’s constitutional protection of a woman’s right to end her pregnancy. In 1980, Florida citizens amended the Florida Constitution to add an explicit right to privacy. Article I, Section 23 reads: “Right of privacy: Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.”
In 1989, the Florida Supreme Court interpreted that provision to mean the state constitution protects the right to abortion, writing that “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime.” Just as the U.S. Supreme Court rooted the abortion right in a right to privacy in Roe v. Wade, so did the Florida Supreme Court.
According to Florida Supreme Court decisions, the Florida Constitution goes further than simply protecting a woman’s right to end an unwanted pregnancy; it vigorously protects it. Florida abortion regulations trigger the highest degree of review from the court, known as strict scrutiny. Few laws survive this exacting judicial standard because it requires that the law be the only possible way to accomplish a truly compelling government objective.
This makes the Florida Constitution’s test for deciding the constitutionality of abortion regulations considerably more demanding than the federal Constitution’s “undue burden” test. For instance, the U.S. Supreme Court has allowed laws mandating that women wait 24 hours after consulting with their doctors before having an abortion on the grounds that the delay does not impose an “undue burden” on women seeking to end their pregnancies. In contrast, the Florida Supreme Court in 2017 temporarily blocked the state’s mandatory delay law imposing a 24-hour waiting period on the grounds that the state failed to show it passed strict scrutiny.
It is difficult to imagine a greater invasion of privacy than the government forcing women to remain pregnant against their will.
To be sure, just as an increasingly conservative judiciary may undermine established protections in the federal court, the same may hold true in the Florida state courts. Due to mandatory retirement rules, DeSantis was able to replace three liberal justices on the Florida Supreme Court with his own picks, all vetted by the very conservative, very influential Federalist Society. Then he was able to replace two more, bringing the number of justices DeSantis has appointed to five out of the seven on the Florida Supreme Court. In short, like the U.S. Supreme Court, the Florida Supreme Court has taken a sharp turn to the right.
Still, while the U.S. Supreme Court may argue that the U.S. Constitution nowhere specifically mentions any right to privacy, the same argument is not available to the Florida Supreme Court. Instead, any decision eliminating a state protection for abortion must explain why the explicit “right to be let alone and free from governmental intrusion into the person’s private life” does not cover the very private decision to end a pregnancy. It is difficult to imagine a greater invasion of privacy than the government forcing women to remain pregnant against their will.
Consequently, while anti-abortion laws may sail through the legislatures, abortion-rights advocates should take some comfort in knowing that the laws will encounter obstacles. Just as power is divided vertically between the federal and state governments, power is also divided horizontally among the different branches — legislative, judicial and executive — of the state government.
State legislatures may willfully ignore their state constitutions, and governors may be happy to go along. State courts, on the other hand, whose power rests with striking down the unconstitutional actions of the other two branches and whose legitimacy rests on reasoned interpretation of those state constitutions, may not.
Granted, there is often wiggle room in interpreting a constitution. In fact, a lower Florida court recently ruled that a 24-hour waiting period did not violate Florida’s constitutional right to privacy since women were still able to obtain an abortion. The same cannot be said for a ban on abortion. In Florida, upholding a pre-viability ban would require a state supreme court even more unprincipled than the U.S. Supreme Court.