It’s hard to imagine a scenario in which the Florida state supreme court would not have allowed Governor Ron DeSantis’s six-week abortion ban to go into effect. In a challenge to a previous 15-week ban, the court’s seven judges, all of whom were appointed by DeSantis, overturned 35 years of precedent this week in order to find that the right to privacy enshrined in the state constitution does not protect the right to an abortion, as Florida state law has acknowledged it does since 1989.
The court’s approval of the 15-week ban will allow a stricter, previously stayed six-week ban to go into effect on 1 May. Justice Charles Canady did not recuse himself from the case, despite calls for him do so from no less an authority than the Florida supreme court’s former chief justice, Barbara Pariente. Justice Canady’s wife, the state representative Jennifer Canady, is a legislative co-sponsor of the newly approved six-week ban. There is no rape or incest exception.
The harm this decision will do to women across the American south is immeasurable. Like many states, Florida dramatically restricted access to abortion in 2022, in the wake of the US supreme court’s Dobbs v Jackson decision that overturned Roe v Wade. Florida’s 15-week abortion ban, signed into law by DeSantis in April 2022, went into effect just days after the ruling. Despite those new restrictions, however, abortion remained much more available in Florida than it did elsewhere in the south.
The south-east corner of the continental United States is home to some of the most restrictive abortion bans. A woman living in Florida finds herself without a right to an abortion at any stage of pregnancy as far west as Texas and Oklahoma and as far north as Missouri, Indiana and West Virginia. Abortion is also banned outright in Arkansas, Louisiana, Mississippi, Alabama, Kentucky and Tennessee; it is banned after six weeks in Georgia and South Carolina. Florida’s 15-week ban was a dramatic reduction of women’s healthcare rights from the pre-Dobbs status quo. But due to the even more sadistic anti-choice zealotry of its neighbors, it was among the most permissive states in the region.
Under these circumstances, Florida became a haven for abortion seekers. Despite the new 15-week ban, abortions soared in Florida in the year after Dobbs, as women from across the south fled their homes in search of the care that was still legal in the Sunshine state. According to the abortion and contraception data project #WeCount, the number of abortions in Florida increased by a total of 20,460 in the 12 months following the Dobbs decision. Now, both Floridian women and those who traveled from out of state for care will be forced to look further afield, to more distant and more expensive locations, in search of legal abortions. Many will not be able to get them.
But in addition to this catastrophe for women’s rights, the Florida court also upended this fall’s election in the state. That’s because, in a narrow vote, the justices allowed a ballot measure to appear before voters this fall that would enshrine abortion rights explicitly in the state constitution.
The proposed constitutional amendment would declare Floridians have a right to an abortion before “viability”, the medically imprecise but politically palatable standard that governed the Roe v Wade legal regime for 30 years and is usually interpreted to allow abortion until about 24 weeks of pregnancy. After that, women whose medical providers declare their pregnancies a danger to their health would also be able to receive abortions.
The ballot measure would need to receive approval from at least 60% of Florida voters in order to be enshrined in the state constitution. But if the measure is successful, it would invalidate both the six- and 15-week bans, and could theoretically be used to expand abortion access even beyond pre-Dobbs levels.
The addition of the abortion rights ballot measure to the November election has dramatically changed the political calculus in Florida overnight. Long the home of a growing sunbelt Republican base and an uncommonly weak state Democratic party, Florida has been considered a shoo-in for Donald Trump, who won the state by three points in 2020. But abortion ballot measures have proven a persistent electoral winner, with measures to preserve or expand access to the procedure winning every time they have been put to voters since Dobbs – including in heavily Republican districts such as Kansas, Kentucky and Ohio, as well as in swing states like Michigan.
And the salience of abortion to an election has been an excellent predictor of Democratic success since Dobbs, with the 2022 midterms and subsequent special elections all delivering Democratic victories whenever the abortion question is at the front of voters’ minds.
In Florida, the new ballot measure may not just influence the presidential election, but the re-election bid of the Republican senator Rick Scott – a one-time governor and fierce abortion rights opponent who has said that he would have signed the six-week ban if he were still in the governor’s mansion. That stance has come under harsh criticism in Florida, where even the comparatively less strict 15-week ban has had horrible human costs.
Anya Cook, a Florida woman whose water broke too early in her pregnancy, almost died from blood loss after the 15-week ban prevented her doctors from administering miscarriage care. Deborah Dorbert was forced to remain pregnant for months after her fetus was given a fatal diagnosis; she delivered an infant who died in her arms. These stories have made an indelible impression on the public. In Florida, more than 60% of voters say that they oppose the six-week ban. Now that it is slated to actually go into effect, that opposition is likely to grow.
If the post-Dobbs era has shown us anything, it is that abortion is controversial only in theory. When faced with the material consequences of banning it, Americans find themselves unequivocally on freedom’s side.
Democrats, then, may find that they have an unusual asset in the Republican opposition to abortion. The bans are consistently unpopular, and the issue has proved persistently salient, moving voters to the polls even two years after the Dobbs decision. But this political boon for the Democrats has come at an unbearable cost: women’s health, happiness and freedom.
Moira Donegan is a Guardian US columnist
