Abortion Ban Likely In FL If Roe V. Wade Is Overturned

FLORIDA — The fate of abortion access for millions of women across the United States — including Florida — hangs by a thread after a draft majority opinion reportedly leaked to Politico suggests that the U.S. Supreme Court is poised to overturn Roe V. Wade, the landmark abortion ruling. A final decision on the case is not expected until late June or July.

If Roe v. Wade is overturned, Florida is likely to ban abortions, according to the Guttmacher Institute. The state legislature attempted to pass both a 20-week and a six-week abortion ban in 2021.

Politico reported Monday that it had obtained the draft majority opinion written by conservative Justice Samuel Alito and circulated inside the court that strikes down Roe and Planned Parenthood v. Casey, the case that affirmed a woman’s right to obtain an abortion.

If the court strikes down Roe, abortion rights would be left to the states to decide. Right now, 22 states have laws on their books to ban or restrict abortion, and four more appear poised to do so, according to the Guttmacher Institute, an abortion rights policy group.

Florida leaders on both sides of the issue reacted following the leak.

“The Supreme Court’s confidential deliberation process is sacred (and) protects it from political interference” U.S. Sen. Rick Scott (R-Naples) tweeted Monday night. “This breach shows that radical Democrats are working even harder to intimidate (and) undermine the Court. It was always their plan. The justices cannot be swayed by this attack.”

Meanwhile, Nikki Fried, Florida’s agriculture commissioner and a Democratic candidate for governor, is hosting a Freedom to Choose rally Tuesday afternoon in Miami. She’s asking people to gather with her at Miami Dade College’s Freedom Tower, 600 Biscayne Blvd., at 1:45 p.m.

“The news coming out of the Supreme Court last night is so disturbing and so dangerous. We can’t sit on the sidelines,” Fried said in a video she tweeted Tuesday morning, adding, “We will stand up for our rights to choose.”

Much can change before the court publishes its final decision. As draft opinions are circulated among justices, votes can and have changed on controversial cases, Politico reported.

Citing a person familiar with the court’s deliberations, Politico reported four other Republican-appointed justices voted with Alito: Clarence Thomas and three Trump-appointed justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Last month, Gov. Ron DeSantis signed House Bill 5, better known as the Reducing Fetal and Infant Mortality Act, into law. The 15-week abortion ban, which takes effect July 1, doesn’t grant exemptions for rape, incest or human trafficking.

"House Bill 5 protects babies in the womb who have beating hearts, who can move, who can taste, who can see, and who can feel pain," DeSantis said about the new law. "Life is a sacred gift worthy of our protection, and I am proud to sign this great piece of legislation, which represents the most significant protections for life in the state's modern history."

Related Story: FL 15-Week Abortion Ban Signed Into Law By Gov. DeSantis

Abortion rights advocacy and other groups were quick to react after Politico published its report.

“Let's be clear: This is a draft opinion. It’s outrageous, it’s unprecedented, but it is not final,” Planned Parenthood tweeted. “Abortion is your right — and it is STILL LEGAL.”

The American Civil Liberties Union said overturning Roe “would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions, for over 50 years.”

“The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding,” the ACLU said.

The National Right to Life organization said it would “let the Supreme Court speak for itself” and would wait for its decision before commenting.

In Florida, U.S. Rep. Charlie Crist, a Democrat running for governor, tweeted Tuesday night, “If true, the fight for a woman’s right to choose will be left up to each state to decide…and front and center in this fall’s election. We must defeat DeSantis."

U.S. Sen. Marco Rubio (R-Miami) also posted on social media about the leak.

“The next time you hear the far left preaching about how they are fighting to preserve our Republic’s institutions (and) norms remember how they leaked a Supreme Court opinion in an attempt to intimidate the justices on abortion,” he tweeted.

The Supreme Court heard oral argument late last year on a Mississippi case challenging Roe. The case, Dobbs v. Jackson Women's Health Association, challenges a Mississippi law that bans abortions in most cases after 15 weeks of pregnancy.

The law undercuts the standard set by Roe that guarantees women access to the procedure up until the fetus is viable outside her womb, typically around 23 or 24 weeks after conception, and longer in cases where the woman's life or health is in jeopardy.

Mississippi’s lawyers argued that striking down Roe, and the Planned Parenthood v. Casey case that affirmed it, is the only means available to enforce the ban.

In Roe, the Supreme Court said an unwanted pregnancy could lead a woman to "a distressful life and future." In the 1992 case, Casey v. Planned Parenthood, the court upheld Roe, finding that abortion rights were necessary for "women to participate equally in the economic and social life of the nation."

Lawyers for the state of Mississippi proposed an array of mechanisms to uphold the 15-week abortion ban but said the court ultimately should overturn the "egregiously wrong" Roe and Casey rulings.

If the court "does not impose a substantial obstacle to 'a significant number of women' seeking abortions," the state argued in December, the justices should reinterpret the "undue burden" standard established in Roe and give the state the authority to "prohibit elective abortions before viability" of the fetus.

The Center for Reproductive Rights, which challenged the law with the Jackson Women's Health Organization, argued that although the Constitution does not address pregnancy, courts have upheld the decision in Roe, which was tied to privacy and personal autonomy.

"Every version of the State's argument amounts to the same thing: a request that the Court scuttle a half-century of precedent and invite states to ban abortion entirely," the plaintiffs' brief states.

In oral arguments, Center for Reproductive Rights Senior Director Julie Rikelman said the state's ban on abortion two months before a fetus is viable outside the womb is "flatly unconstitutional under decades of precedent."

"Two generations have now relied on this right, and 1 out of every 4 women makes a decision to end a pregnancy," Rikelman said.

The plaintiffs also argued that denying women access to abortion is detrimental to their physical and emotional health.

Though the leaking of the draft opinion is unprecedented and a blow to an institution that holds the secrecy of its deliberations sacrosanct, the Supreme Court’s shift on abortion rights isn’t unexpected. The 6-3 conservative majority on the court previously signaled that it may be willing to impose new restrictions on abortion.

According to the Politico report, the three Democratic-appointed judges — Stephen Breyer, Sonia Sotomayor and Elena Kagan — are writing dissent opinions. It’s unclear how Chief Justice John Roberts will vote or if he will write an opinion of his own.