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These Bills Would Further Undermine Abortion Rights in the South

Rachel Wells

Florida Republicans are going after abortion rights as clinics in north Florida have seen an influx of pregnant people coming from nearby states where lawmakers have made abortion care inaccessible.

A proposed near-total abortion ban and forced parental consent bill filed this month in Florida could devastate access to abortion for people across the South.

The anti-choice bills were pre-filed in the Republican-dominated Florida legislature. The parental consent measure is on the agenda next week for the Florida House Health and Human Services Committee.

Rep. Mike Hill (R-Pensacola) reintroduced a six-week ban that would make it illegal for physicians to perform abortions after fetal electrical activity is detected, before many people know they’re pregnant. Unlike the unsuccessful bill Hill filed last year, this version contains no exceptions in cases of rape, incest, or life endangerment—a decision Hill said he made last spring after he received a message from God to “remove those exceptions.” The so-called heartbeat bill makes “any person who willfully performs, or actively participates in” an abortion guilty of a third-degree felony.

Lawmakers in seven states—Alabama, Georgia, Kentucky, Louisiana, Mississippi, Ohio, and Missouri—passed similar abortion bans in 2019. Georgia Republicans’ near-total abortion ban was blocked by a federal judge in early October.

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“All of those bans are blatantly unconstitutional,” Elisabeth Smith, chief counsel for state policy and advocacy at the Center for Reproductive Rights, told Rewire.News. “The central holding of Roe is that pregnant people have the ability through the first trimester to determine by themselves whether they continue a pregnancy. The states that were passing the early gestational bans were doing [so] fully aware that [the bans] were unconstitutional and that they would be challenged in court.“

The parental consent bill sponsored by Rep. Erin Grall (R-Vero Beach) would make it illegal to provide an abortion to a minor without written consent from a parent or legal guardian. The state already requires parental notification 48 hours in advance. Sen. Dennis Baxley (R-Ocala), who was a co-introducer of the bill in the state senate last session, says the legislation aims to challenge the state’s constitutional right to privacy.

During a Christian Family Coalition event in August, Baxley explained the bill’s intent: “I truly believe the single issue … we need to work on [next session] is parental consent regarding abortion. We have a very big challenge in Florida, and that is how the privacy clause is used …. Parental consent is an easy argument for us …. [The parental consent bill] will address where we are with the privacy clause in a new way that could open the door for many other accomplishments to save lives.”

The amendment, passed in 1980 by Floridians during a general election, guarantees citizens of all ages the right “to be let alone and free from governmental intrusion into [their] private life.” The clause, which has played a role in stymying many of the attempts to hinder abortion access in Florida, is drawing renewed scrutiny. In other states where constitutions stalled anti-choice legislation from taking hold, Republican lawmakers turned to ballot measures to pass amendments. This strategy was successful in Tennessee, West Virginia, and Alabama, which have used constitutional amendments to strip protections for abortion.

“The [parental consent] legislation is a stalking horse intended to open the door to a flood of abortion restrictions that have, up until now, been overturned in the courts because of the strong privacy protections in Florida’s constitution.” Laura Goodhue, executive director of Florida Alliance of Planned Parenthood Affiliates, told Rewire.News. Its passing could trigger a landslide of new abortion regulations in the state, Goodhue said.

Despite being dominated by the GOP—with a Republican governor, 73-47 state house, and 23-17 state senate—Florida has a history of pro-choice judicial precedent. “In Florida, there have been really great state Supreme Court decisions articulating a strong right to abortion under the Florida Constitution. That’s been known and demonstrated in multiple pieces of litigation,” said Smith.

The Florida Supreme Court in October 1989 overturned a parental consent law passed by the state legislature, citing the right to privacy in the state’s constitution. In 2003, the court struck down a parental notification requirement, but a constitutional amendment passed by voters the next year cleared the way for a parental notification law.

But three conservative justices were appointed to the court last year, replacing a trio of liberal justices who had reached the mandatory retirement age and creating what the Florida Sun Sentinel editorial board called “the most conservative Florida Supreme Court in decades.”

If the anti-choice legislators succeed in passing these anti-choice restrictions it’s not only Floridians who would be affected. Both of the bills would have repercussions for abortion access across the Southeast. Clinics in north Florida are seeing an influx of pregnant people coming from nearby states where lawmakers have made abortion care inaccessible, Goodhue said. Florida as of 2017 had 85 facilities providing abortion services, far more than nearby states like Louisiana, Mississippi, and Alabama.

With targeted regulation of abortion providers (TRAP) laws that have closed clinics by creating burdensome, medically unnecessary requirements like forced waiting periods, many people face logistical and financial hurdles in obtaining abortion care. If access is hindered or banned in Florida, there would be less regional access to abortion, exacerbating what Smith fears is becoming “an abortion desert.”

Florida only permits public funding for abortion in cases of life endangerment, rape, or incest. The state also mandates a patient receive state-directed counseling that often includes inaccurate information, requires a parent of a minor seeking abortion care be notified, and requires a patient undergo an ultrasound and be given the opportunity to view the image, according to the Guttmacher Institute. If these new bills pass through the Republican-majority legislature, Florida would join its neighboring states in putting abortion services out of reach, even with Roe intact.

“If Florida were to pass these two bills in 2020, that would mean you’d have a block of states where parental consent is required and litigation is occurring around a six-week ban. While in some states there’s been litigation around parental consent or notification laws, for the most part states that have passed them have enforced them and continue to enforce them,” Smith said. If the parental consent bill passes and the constitutional right to privacy is successfully challenged, advocates expect anti-choice legislators to continue to limit access by passing anti-choice laws through 2020 and beyond.

Correction: A previous version of this article stated that Sen. Dennis Baxley had previously sponsored a parental consent bill. He was the bill’s co-introducer, not primary sponsor.

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