Florida bill baits abortion challenge

John Stemberger, president of the Florida Family Policy Council, drove four hours from his home in Orlando to Tallahassee on Feb. 1. The next morning, he gave a 30-second testimony in the Florida Senate Health Policy Committee. People lined up in the high-ceilinged, white-walled room in the Capitol Complex to speak on a pro-life bill that would protect babies from abortion after 15 weeks of gestation. No one had enough time to say everything on their minds.

“The problem this bill is solving is that Florida has become a late-term abortion destination state,” Stemberger said. As the committee chair dismissed him, Stemberger pointed out that 15 weeks is the standard set by Mississippi in Dobbs v. Jackson Women’s Health Organization, an abortion case before the United States Supreme Court that asks the Supreme Court to overturn Roe v. Wade.

Florida pro-lifers have their eyes on the federal and state Supreme Courts as they push for pro-life legislation this session. Confident in their conservative state justices, pro-life activists want the Legislature to pass a bill that could challenge a 1989 Florida Supreme Court decision that established a right to abortion. But the future of pro-life laws in Florida could come down to timing.

The people of Florida in the 1980 general election voted to add a right to privacy to their state constitution. The amendment was aimed at the sort of privacy infringements the country had seen in the Watergate scandal such as clandestine government surveillance and using individuals’ private information for political purposes. 

In 1988, the Florida governor signed a law requiring minors to get permission from their parents before getting abortions. The case of a 15-year-old girl who wanted an abortion but didn’t want to tell her parents ended up at the Florida Supreme Court, and the justices used the new privacy clause and the example set by Roe to establish a right to abortion. “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy,” the justices wrote.

“We’ve been living with that since 1989,” said Stemberger, who was lobbying for Florida Right to Life at the time. He came to the pro-life movement in the 1970s as a young Democrat who saw abortion as a “gross human rights violation.”

That and later decisions declaring a woman’s constitutional right to abortion are the reason groups like the pro-abortion Center for Reproductive Rights predict the procedure will remain legal in the state if Roe falls. Stemberger said the only way to change that is to amend the constitution directly or for the state Supreme Court to take a case that can overturn those previous decisions.

In 2020, Gov. Ron DeSantis, a Republican, signed another parental consent law similar to the one the justices ruled unconstitutional in 1989. Stemberger and other pro-lifers hoped a legal challenge would make it to the state Supreme Court. But pro-abortion groups at the time noticed the strong pro-life majority among the justices—a major shift from more than 30 years earlier. “They never appealed it … because they realized if they appeal it, they could actually mess up the superpowered abortion right that they now enjoy in our state constitution,” Stemberger said.

He and other pro-lifers hope the bill protecting babies from abortion after 15 weeks of gestation could be a vehicle for overturning that 1989 decision. In a House subcommittee hearing for the bill during the last week of January, pro-abortion activists erupted into chants of “abortion is healthcare.” Florida news outlets reported that security cleared the public out of the room before discussion of the bill continued.

Stemberger isn’t sure pro-abortion groups would challenge a 15-week bill. According to the state’s 2021 abortion data, only about 6 percent of all abortions in the state happen after the first trimester of pregnancy. Stemberger thinks that minimal loss of business might not be enough for pro-abortion groups to risk a lawsuit that could threaten the 1989 precedent.

One Florida lawmaker filed a bill in the House modeled after Texas’ controversial law protecting babies from abortion after they have detectable heartbeats. But he didn’t get a Senate sponsor or a House co-sponsor for the bill. Stemberger said a heartbeat bill at this point would be a waste of work since the U.S. Supreme Court could rule in the Dobbs case only to uphold Mississippi’s 15-week law without allowing earlier protections. In that case, Stemberger said pro-lifers in the state would likely shift to focusing on enforcing the state’s already enacted laws regulating clinics.

But Stemberger listened to the Dobbs oral arguments and is optimistic that the court will overturn Roe. And right now, Florida has what he calls a trifecta: a pro-life house, senate, and governor. “This is our year to really do something,” he said.