Florida Senate passes 6-week abortion ban, but court will have final say

Washington D.C., Apr 6, 2023 / 08:30 am

A bill that would ban abortions after six weeks’ gestation passed the Florida Senate and appears to be on its way to becoming law; however, lawmakers first need the state Supreme Court to overturn a decades-old “right to privacy” enshrined in the state constitution.

The Heartbeat Protection Act, sponsored by Sen. Erin Grall, R-Vero Beach, passed the Senate 26-13 with support from most Republicans in the chamber and opposition from Democrats. The bill, which Gov. Ron DeSantis pledged he would sign if it gets to his desk, will now be considered by the House, which has a strong 84-35 Republican supermajority.

“For decades now, Florida has been a nationwide leader in defending the rights of the unborn,” Grall said in a statement upon the bill’s passage.

“The Heartbeat Protection Act will make Florida a beacon of hope for those who understand that life is sacred and must be protected,” Grall continued. “This bill represents an unprecedented opportunity to protect innocent life and to stand with the brave moms who choose life for their babies. For 50 years, it was legal in this country to kill unborn children, and during that time, abortion has touched every single one of us. We have to grieve for what we have done as a country. This bill makes certain our laws reflect the strongest protections for innocent life.”

Katie Glenn, the state policy director for Susan B. Anthony Pro-Life America, told CNA that the bill “definitely moves Florida forward in a positive way.” She said the bill has “been fast-tracked in the Legislature” and believes it could become law by the “end of this month.”

“I know the House has a short week,” Glenn said, “but it should pass through the House next week or in the next few weeks and Gov. DeSantis has pledged to sign it.”

What the bill would do

This six-week abortion ban would calculate gestation from the first day of the woman’s last menstrual period. The legislation includes exceptions for rape, incest, and human trafficking, which would be subject to a 15-week cutoff and reporting requirements. The ban would create an exception for whenever the mother’s life or health is at risk and establish a third-trimester cutoff when fatal fetal abnormalities are detected.

If a physician performs an abortion in violation of the law, he would be subject to a third-degree felony, which is punishable by up to five years in prison. If an illegal abortion results in the death of the mother, the physician would be subject to a second-degree felony, which is punishable by up to 15 years in prison. These punishments also apply to any person who actively participates in the abortion.

The legislation also provides about $30 million in funding to support parents and families. This includes money for additional counseling or mentoring services and nonmedical assistance, such as clothing, formula, diapers, and cribs. In addition to those funds, lawmakers included more funding in the budget to support families.

Awaiting a Florida Supreme Court decision

Even if this bill becomes law, the six-week abortion ban would only go into effect if the Florida Supreme Court rules to let stand its current 15-week abortion ban. This would require the Supreme Court to fully overturn or modify its current precedent, which guarantees a right to abortion, based on the Florida Constitution’s right to privacy.

If the Florida Supreme Court rules in favor of the 15-week abortion ban, then the six-week abortion ban would go into effect 30 days after that ruling. If the court rules against the law, the legislation will not go into effect. Supporters are optimistic that the court will overturn its current precedent because the court has allowed the 15-week abortion ban to remain in effect, pending the final ruling.

Glenn told CNA that Attorney General Ashley Moody and her team are “doing a great job” defending state law and noted that the court precedent that protects abortion relies heavily on the right-to-privacy arguments used by the U.S. Supreme Court in Roe v. Wade, which has since been overturned.

The Florida right to privacy was approved via a ballot amendment shortly after the Watergate scandal, which Glenn said was motivated by privacy concerns related to wiretapping and government intrusion but not abortion.

“No voter went to the polls thinking it was about abortion,” Glenn said.

The amendment, adopted by voters in 1980, states: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

After the U.S. Supreme Court overturned Roe v. Wade, numerous states passed laws to restrict abortion, but most of those laws have been challenged in the court system. Glenn said the outcomes have “been honestly a mixed bag so far.” Some states have upheld abortion bans, others have struck them down, and many are still in ongoing court battles.

Glenn argued that it’s “not the role of the judiciary to be the last stop after the governor approves and signs a bill passed through the legislature” and encouraged courts to learn from the U.S. Supreme Court and allow lawmakers to craft laws for their respective states.

“There’s no time like the present to do the right thing … and let those laws go into effect,” Glenn said.