DeSantis, his Supreme Court and hard-right Legislature keep Florida on track to abolish abortion

By Noreen Marcus. FloridaBulldog.org

No reasonable access to abortion in Florida, unthinkable just five years ago, now seems inevitable.

Gov. Ron DeSantis, the Republican-dominated Legislature and the Florida Supreme Court speak as a single voice that vehemently opposes recognizing women’s reproductive rights. Earlier this month Chief Justice Carlos Muniz went so far as to inject anti-abortion buzzwords into a hearing although neither party had raised the relevant issue.

Late last week the Florida Senate seemed poised to pass a bill that foreshadows adding “fetal personhood” to civil liability law. The measure would enable parents to sue for the wrongful death of a fetus, redefined as an “unborn child,” and seek money damages from the alleged perpetrator.

But a public outcry, mostly about a similar law in Alabama, forced at least a temporary delay. On Monday the bill’s Senate sponsor, Sen. Erin Grall, R-Fort Pierce, requested a postponement.

“It looks like our voices were heard,” said Kat Duesterhaus, legislative director of Florida NOW. She noted the bill isn’t dead this session, only shelved for the moment. The Legislature is set to adjourn on March 8.

Fetal personhood, which grants legal rights from conception, is the Holy Grail of anti-abortion zealots. It carries the promise of criminally prosecuting any pregnant woman or healthcare provider who destroys a fetus in the course of medical treatment.

“If you’re not worried about fetal personhood, you should be,” feminist author Jessica Valenti wrote in her “Abortion, Every Day” newsletter on Substack.

Last week the Alabama Supreme Court applied the concept at the microscopic level, ruling that frozen embryos are children. The decision threatens the widespread use of in-vitro fertilization (IVF) to help women have babies.

Alabama Chief Justice Tom Parker wrote about the state’s Wrongful Death of a Minor Act that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God.”

Florida may be gaining on Alabama.

FETAL PERSONHOOD

The Florida wrongful death bill “doesn’t establish fetal personhood by itself, but it’s a  slippery slope and part of a larger agenda to undermine our privacy when it comes to our medical decisions,” said Florida NOW’s Duesterhaus.

She said she’s heard Republican legislators say in committee hearings, “they’re wanting this to be a path for fetal personhood, and some say it doesn’t go far enough.”

If the Florida Legislature were to go as far as Alabama and reach fetal personhood, recent history suggests the Florida Supreme Court wouldn’t strike down the law; the justices probably would say that’s not their job and defer to legislators.

Gov. DeSantis, aided by the Christian nationalism-friendly Federalist Society, has curated a Supreme Court that eagerly upends precedents, especially if they’re liberal landmarks.

The justices are expected to find a way around the Florida Constitution’s explicit right of privacy, the legal basis for reproductive freedom, in order to uphold the 15-week abortion ban they’re currently reviewing.

DeSantis uses an anti-abortion litmus test for his Supreme Court appointments. Five of the seven sitting justices earned passing grades.

WORKING THE GATE

At hearings Chief Justice Muniz refers to fetuses as “unborn children” and expresses concern for their rights. In January 2022 he gave the anti-abortion Florida Family Policy Council a private tour of the court that staffers viewed as an early victory lap.

Justice Charles Canady, one of only two pre-DeSantis holdovers on the court, coined the loaded term “partial-birth abortion” in 1995 when he was a U.S. congressman. The other holdover, Justice Jorge Labarga, is an institutionalist, a moderate conservative and, because his opinion hardly ever prevails, a frequent dissenter.

Significantly, Canady has a generally unacknowledged conflict. His wife, state Rep. Jennifer Canady, R-Lakeland, co-sponsored a six-week abortion ban that will take effect as soon as her husband and his colleagues approve the 15-week ban.

The Florida high court is the gatekeeper for ballot initiatives, and that’s the only way for citizens to change the state constitution and overrule a legislature that regularly defies the will of most voters.

Polls and votes in other states suggest this is happening with abortion in Florida and nationally. Voters in Kansas, Kentucky and Michigan have kept or expanded abortion rights and about a dozen other states may change their laws in November to do the same.

Now Florida justices are weighing the ballot-worthiness of a grassroots effort to vote abortion rights into the Florida Constitution. 

They must rule by April 1 on whether or not an abortion measure from Floridians Protecting Freedom is good to go for the November ballot. The court is supposed to consider only whether a proposal covers a single subject and is clear to the average voter – not the policy behind the proposal.

‘VOICE OF THE PEOPLE’

Amendment 4 states: “Limiting government interference with abortion – Except as provided in Article X, Section 22 [parental notice of a minor’s abortion], 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.” 

Attorney General Ashley Moody has called the ballot measure an effort to “hoodwink” voters into accepting something they wouldn’t want if they understood the consequences. She attacks “viability,” asserting the term has no generally accepted meaning.

Moody offers the justices a handy rationale to explain why they agree with her: Amendment 4 is susceptible to “an enormously wide range of meanings” and therefore is ambiguous and misleading, her counsel Nathan Forrester told the court during oral argument on Feb. 7.

Meanwhile, outside the courthouse in downtown Tallahassee, Amendment 4 supporters and opponents rallied, waving signs that read, “Let Us Vote” and “Florida Voice for the Unborn.”

A ballot initiative is “the voice of the people,” Cecile Scoon, co-president of Florida’s League of Women Voters, told Florida Bulldog. “These are the desires of the citizens of the state of Florida, and if you believe in democracy, let the people have a voice.”