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An enormous moral decision

The Florida Supreme Court upholds pro-life law and puts the issue before the state’s voters


Florida Gov. Ron DeSantis holds up a 15-week abortion ban law in Kissimmee, Fla., on April 14, 2022. Associated Press/Photo by John Raoux

An enormous moral decision
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This week, the Florida Supreme Court upheld a 15-week limitation on abortion. The justices concluded that “there is no basis under the Privacy Clause to invalidate the statute.” This ruling cleared the way for a second Florida law, the Heartbeat Protection Act, which protects unborn life after six weeks’ gestation, to take effect on May 1.

What happened to get Florida there?

The Florida legislature determined that, with certain exceptions for the life, health of the mother, and fetal anomalies, abortions should not occur past 15 weeks gestation. At fifteen weeks’ gestation babies can move and stretch, kick, and work on breathing, swallowing, and sucking motions. They can likely feel pain.

Planned Parenthood immediately challenged Florida’s 15-week limit, alleging that a 1989 Florida Supreme Court decision (In re TW) had followed Roe v. Wade in finding a state constitutional right to abortion. That decision held that the Privacy Clause of the Florida Constitution protected a right to abortion in the state.

The challenge to Florida’s 15-week law gave the Florida Supreme Court a chance to reconsider that precedent. Engaging in a close textual and historical analysis of the Florida Constitution and the Privacy Clause, the court concluded that “there is no basis” under the Florida Constitution to invalidate the statute. This meant that Florida’s law protecting life at 15 weeks was constitutional.

The same decision also paves the way for the Heartbeat Protection Act to take effect. That law protects unborn life by prohibiting abortions after six weeks gestation, with exceptions for rape, incest, human trafficking, the life and health of the mother, and certain fetal anomalies. It was passed with a provision noting that the law would go into effect 30 days after the Supreme Court upheld the Florida legislature’s ability to protect life.

The Heartbeat Protection Act also provides significant material support to Florida parents. It includes counseling and mentor services as well as nonmedical material assistance to provide families with car seats, cribs, clothing, formula, and diapers. It includes $30 million of new funding for pregnant women and families, in addition to nearly $500 million in funding for family benefits like extended post-partum care coverage for women enrolled in Medicaid and receiving CHIP Medicaid benefits, family planning, MomCare, and Healthy Start.

Even these modest limitations are being challenged by abortion providers under broadly worded constitutional amendments.

On the very same day the Florida Supreme Court reversed its finding of a state constitutional right to abortion, it also allowed an abortion amendment to go on the fall ballot. That amendment provides: “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.” While reserving interpretive questions for the future, the court noted “the broad sweep” of the proposed amendment. That amendment calls into question modest abortion regulations like a 24-hour waiting period or even informed consent for an undeniably serious and consequential surgical procedure.

There’s no doubt abortion supporters will say the amendment simply returns to the Roe era. But abortion providers around the country are filing suit under similar constitutional amendments or court decisions to overturn modest regulations on abortion that were upheld under Roe. Abortion providers in Michigan, for example, are challenging the state’s 24-hour waiting period along with its long-standing informed consent law. And in Ohio, abortion providers just filed suit seeking to invalidate three aspects of Ohio’s informed consent laws. Plaintiffs in that case allege that the requirements violate Ohio’s recent reproductive freedom amendment.

Many states have had similar protections in place for decades. Provisions like these were routinely upheld by the federal courts under Roe v. Wade, but now even these modest limitations are being challenged by abortion providers under broadly worded constitutional amendments. Voters should take notice.

With the pair of decisions from the Florida Supreme Court, voters in Florida will have the opportunity to vote on one of the most consequential moral decisions of our era. Do the most vulnerable among us deserve the right to life? Do we value the dignity of every life, no matter how small? Studies show that economic concerns are a primary driver of women choosing abortion and that many women say they would have chosen to parent had they had additional support. Should we strive to facilitate real choice for mothers facing unexpected pregnancies, like the $30 million dollars earmarked for expectant mothers under Florida’s Heartbeat Protection Act, providing support and options to support their flourishing through pregnancy and beyond?

Florida voters this fall should stand up and say no to the abortion lobby’s ever more radical agenda.


Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and a law professor at Regent University School of Law.


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