The Florida abortion rulings.

A pair of controversial rulings from the Florida Supreme Court.

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Tomorrow.

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Quick hits.

1. Bird flu was found in chickens at a Texas plant for the largest producer of fresh eggs in the U.S. The producer, Cal-Maine Foods, culled 3.6% of its total flock after discovering the infected chickens and said there is no known bird flu risk associated with its eggs that are currently in the market. (The discovery)
2. Ukrainian President Volodymyr Zelensky signed a law lowering the age of military conscription from 27 to 25 as the country tries to bolster its armed forces. (The bill) Separately, NATO foreign ministers met to discuss a proposal for a $107 billion five-year fund for military aid to Ukraine. (The discussions)
3. The death toll from yesterday’s 7.4-magnitude earthquake in Taiwan rose to 10 while more than 700 people remain stranded. (The latest) Local officials and seismology experts said Taiwan’s early-warning system and modern building codes prevented significant damage and loss of life. (The preparations)
4. President Biden and Israeli Prime Minister Benjamin Netanyahu are scheduled to speak today amid heightened tensions following an Israeli airstrike that killed seven aid workers in Gaza this week. (The call)
5. A judge ruled that the federal government must “expeditiously” house migrant children who cross into the United States unlawfully and cannot continue to allow them to remain in open-air sites along the border. (The ruling)

Today's topic.

The Florida abortion rulings. On Monday, the Florida Supreme Court affirmed the ruling of the First District Appeals Court that the state’s abortion restriction does not violate the Florida constituiton’s Privacy Clause. The 6-1 majority decision upholds a state law passed in 2022 to ban any abortion after 15 weeks of pregnancy, and also triggers a stricter 6-week abortion ban passed last spring to be put into effect on May 1. In a separate 4-3 decision, the state court ruled that a constitutional amendment to limit government intervention in abortions meets the necessary requirements to appear on the ballot this November. 

Back up: In 1980, Florida amended its constitution to state that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.” For decades, state courts interpreted the law as protecting abortion access. In April of 2022, Florida Governor Ron DeSantis (R) signed into law a 15-week restriction on abortion with exceptions for if the mother is at serious risk of injury or death, but without exceptions for rape, incest, or human trafficking. That law was challenged by Planned Parenthood, who said it violated the Privacy Clause. The First District Court then sided with the state and allowed the law to be enforced while Planned Parenthood appealed to the State Supreme Court.

Before the court’s decision, Gov. DeSantis also signed S.B. 300, or the Heartbeat Protection Act, into law in April of 2023. That law placed a restriction on abortions after six weeks of pregnancy, with exceptions for health and life of the mother, as well as exceptions for rape, incest, or human trafficking on abortions up to 15 weeks after conception.

Then what: While the court allowed the 15-week ban to be enforced during appeal, enforcement of the stricter six-week ban was put on hold until the Florida Supreme Court issued its ruling. Meanwhile, in May of 2023, the organization Floridians Protecting Freedom, Inc. introduced a ballot initiative for an amendment to the state constitution stating that “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.” In October of 2023, Florida Attorney General Ashley B. Moody filed a brief with the court to block the ballot initiative, saying it “vastly understates the potential sweeping scope of the amendment, by failing to explain what 'viability,' 'health,' or 'healthcare provider' means.”

What now: With its recent decisions, Florida’s six-week ban will go into effect on May 1, making it the last state in the Southeast to cap abortion access at or before 12 weeks of pregnancy. The proposed amendment will now be on the ballot in November, likely increasing voter turnout and impacting key congressional races, potentially even the presidential election.

Since Roe v. Wade was struck down by the U.S. Supreme Court in 2022, many states have voted on ballot measures establishing state constitutional rights to abortion. Majority liberal states like Vermont and California quickly adopted measures protecting abortion rights, while voters in some conservative states have either expanded abortion rights or turned down measures to limit them. In the 2022 midterms, voters in Kansas rejected a proposed amendment to the state constitution explicitly stating that it does not grant the right to abortion. Kentuckians followed suit, voting down a ballot measure aimed at denying any constitutional protections for abortion. Then, in 2023, Ohio voters approved a constitutional amendment ensuring access to abortion and other forms of reproductive health care. 

These results, and polling that consistently shows a strong majority of Americans in favor of abortion access, have Democrats hoping that they can make Florida a battleground state. After the rulings came out this week, President Biden and Vice President Kamala Harris both issued statements blaming Republicans for the new abortion restrictions, while Biden’s campaign manager Julie Chávez Rodríguez released a memo calling Florida a "winnable" state.

Biden and Democrats still face an uphill battle in Florida, where Donald Trump won by over 3% (370,000 votes) in 2020 and DeSantis won re-election by nearly 20 points in 2022. Further, the Republican party has a roughly 855,000 registered-voter advantage over Democrats in the state, and Republicans hold all statewide offices, a majority in the congressional delegation, and supermajorities in the Florida House and Senate. 

Some Florida Democrats are cautioning Biden’s campaign that more investment in the state could do more harm than good for the ballot initiative, potentially driving away Republican voters who would support the ballot measure but won’t vote for Biden. State Rep. Anna Eskamani (D) said she expects Biden “to support the initiative, but letting locals lead on this is smart.” 

Today, we’re going to take a look at arguments from the left and right about the Florida Supreme Court’s rulings, then share our take.

What the left is saying.

• The left is critical of the court for allowing the six-week abortion ban but relieved that the referendum on constitutional protections can go forward. 
• Some hope Florida voters send a message to state Republicans that their policies are disconnected from the will of the people.
• Others worry that the court’s majority opinion foreshadows a willingness to further restrict abortion rights in the future.

The Tampa Bay Times editorial board said the “referendum is a rare chance for Floridians to enshrine privacy rights.”

“The court’s ruling was hardly surprising… But the opinion exposed the political lens this court takes toward controversial policy issues and its willingness to pluck arguments from the ether to justify its decisions,” the board wrote. “The majority opinion, for example, noted that the phrase ‘right to privacy’ gained ‘new connotations’ after the Roe decision in 1973, including ‘the choice to have an abortion.’ But the majority also dismissed the impact this association between a right to privacy and the Roe decision had on the decision by Florida voters to adopt their own privacy clause.”

“That’s why the court’s other decision to clear an abortion-rights amendment for the November ballot is so helpful in potentially balancing the fallout,” the board said. “Florida voters have a rare chance this November to enshrine reproductive rights before the governor, legislature and high court erode even more of our privacy protections.”

In Bloomberg, Mary Ellen Klas wrote “Florida can send an abortion message: the GOP Is out of touch.”

“Florida voters have always been more independent-minded than the elected Republicans that control the state, and they are poised to not only restore abortion rights but do it with help from Republican voters — including many who will support Donald Trump,” Klas said. “But these ticket-splitters should also step back and ask some serious questions about how well their interests are being represented by the conservative Republicans who are enacting these backward policies and trying to control women’s bodies.”

In Florida, voters “have a long history of demonstrating they don’t trust politicians to regulate things they really care about. While electing increasingly conservative Republicans to statewide offices, Florida voters also approved measures to raise the state’s minimum wage, authorize medical marijuana sales, impose redistricting rules, restore felons’ voting rights, expand land and water preservation, and ban offshore oil drilling,” Klas wrote. They should “send a message that they want moderation.”

In Slate, Mark Joseph Stern discussed “the giant threat lurking behind Florida’s November abortion vote.”

“The court’s split decision offers hope that Floridians can reestablish their state as an abortion refuge in the South this November. But an ominous current lurked beneath the rulings: Six of the court’s seven justices appeared to endorse fetal personhood under the state constitution as it stands now, expressing support for—as one justice put it—‘the unborn’s competing right to life’ over the patient’s right to bodily autonomy. The majority’s rhetoric indicates that if the pro-choice amendment fails this fall, the Florida Supreme Court remains ready to grant fetuses and embryos a constitutional right to life that prohibits the Legislature from legalizing abortion in the future.”

“Six justices stand ready to institute fetal personhood under existing state law. The disagreement among this far-right supermajority comes down to tactics, timing, and deference to democracy,” Stern said. “If the initiative fails in November, the Legislature may never be able to loosen the state’s current restrictions on abortion. Constitutionalizing fetal personhood would entrench the six-week ban—and raise the possibility of a court-imposed ban that goes even further.”

What the right is saying.

• The right is concerned about Republicans’ vulnerability on the abortion issue and its potential ramifications for the 2024 election.
• Some urge the party to go on the offensive and make the case against the referendum.
• Others suggest Biden’s posturing on the issue is hypocritical. 

The Wall Street Journal editorial board asked “will abortion make Florida a swing state?”

“Opponents will argue [the referendum’s] language is vague, maybe intentionally, and they’ll have a point. Does a ‘health’ exception cover mental health? Who qualifies as a ‘healthcare provider’? But these are the arguments Republicans have been making, and losing, for two years,” the board wrote. “When Florida passed a 15-week abortion restriction in 2022, Republicans were near the center of public opinion. That law would have been easier to defend at the ballot box.”

“Then last year Mr. DeSantis signed a six-week law. If the result is that Floridians enshrine in the state constitution a right to abortion through ‘viability,’ or about 24 weeks, that law will have been a strategic mistake by abortion foes,” the board said. “The Supreme Court gave abortion policy back to the electorate, which is better than having it dictated by judges. Now the people are deciding. We don’t doubt the sincerity of Republicans who vote for six-week laws like Florida’s. But if they haven’t persuaded the public, they might be courting political defeat.”

In RedState, Bonchie argued “it's time for Republicans to stop being cowards and actually win on abortion.”

After the court’s ruling, “the reaction among some was predictable if not pathetic. ‘Conservative’ influencers who once proclaimed themselves unflinchingly pro-life suddenly got weak in the knees, taking the ‘I told you so’ approach to the issue. The very same people who once criticized Republicans for not being pro-life enough have now decided to attack Gov. Ron DeSantis' triumph for cheap political gain,” Bonchie wrote. “Frankly, I'm sick of it. I'm tired of influential ‘conservatives’ twisting in the wind, bending the knee on issue after issue believing that if they just flip-flop one more time, they'll be ushered into power. That's not how politics works, and it's also incredibly immoral.”

“How about Republicans who claim to be pro-life actually try to win on the issue for once... instead of preemptively surrendering and trying to dunk on those with actual courage for clout, how about working to persuade enough people so that the referendum is defeated?,” Bonchie said. “Florida is the perfect place to make such a stand. The referendum would need 60 percent to pass, which is already a high bar for pro-abortion advocates. Further, Republicans hold a large voter registration advantage in the state as a result of DeSantis' tenure. Take advantage of that and mobilize conservatives to go out and protect the unborn.”

The New York Sun editorial board criticized Biden for “crowing about the political possibilities” created by the referendum.

“Biden calls that ruling ‘extreme’ and ‘outrageous,’ and reiterates his call for Congress to ‘pass a law restoring the protections of Roe v. Wade in every state,’” the board wrote. “It is strange, then, to turn from White House warnings to the jubilation of Mr. Biden’s reelection campaign… [they] are suddenly delighted about Dobbs and busy ‘investing in Florida as a pathway to victory.’ They realize that abortion ‘is mobilizing a diverse and growing segment of voters to help buoy Democrats up and down the ballot.’”

“Can Mr. Biden, though, have it both ways? Can he attack the court that delivered Dobbs only to welcome its downstream effects as a path to winning the electoral prize of Florida, which could cinch the election? It would be remarkable if Dobbs, the product of a court shaped by President Trump, were responsible for trapping him at Mar-a-Lago rather than bringing him back to the White House. Could Mr. Biden learn that heeding the Constitution has its perks?”

Our take.

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• We’re a bit skeptical over the court’s break with precedent on the Privacy Clause, but overall support its decision to uphold the legislature’s restrictions.
• We’re less worried about vagueness in the proposed amendment and are glad that Floridians will get to vote on it in November.
• It’s still too early to say how the referendum could impact Florida’s election, but it probably won’t tip the scales enough for Biden to compete.

It feels like the court got both of these right, despite some valid objections.

And of those objections, the issue with the Privacy Clause is a lot tougher to parse, even though the clause itself isn’t very long. The entire text of Section 23 of the Florida Constitution reads:

“Right of Privacy. — Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

It’s true that there isn’t anything in that text that explicitly ties privacy to abortion, which is a pretty straightforward conclusion that the majority of the court arrived at in their 6-1 decision. However, as Justice Jorge Labarga said in his dissent, the clause has been historically used as a justification for the right to reproductive care without what it calls “governmental intrusion.” “The dominance of Roe in the public discourse makes it inconceivable that in 1980, Florida voters did not associate abortion with the right of privacy,” Labarga wrote in his dissent.

But historical precedent of judicial interpretation isn’t the same as an edict of law. In that sense, this ruling is reminiscent of Dobbs v Jackson, in which the court overturned the decades of precedent stemming from Roe v Wade that allowed women to have access to an abortion through their second trimester. No law granted that access; it came through a judicial interpretation. When the Supreme Court overturned Roe, they wrote that the matter of abortion would be “returned to the people and their elected representatives.” And that’s exactly what’s happening here.

We also agree with the court’s decision to allow the amendment to appear on the ballot. Though some on the right have criticized the language in the amendment as vague, that’s not unusual for constitutional language of this nature. Here’s what the proposed amendment says: 

“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. This amendment does not change the Legislature's constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

That doesn’t seem unduly vague. If anything, it does an effective job conveying the amendment’s goal: To protect abortion access when a pregnancy presents a health risk. Is “patient health” arbitrary, and does it vary depending on the healthcare provider? Undoubtedly. Is it the place of a constitutional amendment to specify exactly what those terms mean and in what cases they apply? No — go read any amendment to the U.S. or any state’s constitution and try to argue that this wording is in any way more vague. Those interpretations are up to lawmakers and their constituents; here, voters are simply choosing the parameters they want to set for how future laws can be crafted. 

Before Roe was struck down, most pro-life advocates were calling for the exact situation we have now — states determining their own abortion laws. But now that voters are making their preferences known across the country, the pro-life side has to reckon with that reality and make their case to voters to agree, rather than trying to prevent these votes from happening. 

For the respective pro-life and pro-choice camps in Florida, there’s good news and bad news. The good news for the pro-life camp is that there are about to be a lot fewer abortions in Florida. Since Dobbs, the state has been a haven for women in the Southeast who were looking to receive an abortion — Kate Cox, the woman who left Texas to receive an abortion, traveled to Florida. Now, there’s no state south of Virginia and east of New Mexico where abortions are legal after 15 weeks of conception (with the usual exceptions). For pro-choice people, that’s the bad news. And it goes further, too: Abortions, with some exceptions, will soon be illegal after six weeks, placing Florida among the most restrictive states in the country for abortion access.

Then there’s the good news for pro-choice Floridians: The ballot measure in November. If passed, the Sunshine State will immediately flip to becoming one of the least restrictive states on abortion. Amendment 4 will require a 60% majority to pass, and right now it looks like the public opinion is leaning towards ratifying it. It isn’t a done deal, but we know that protecting access to abortion is a huge winning position right now, which makes the good news for the pro-choice side better: Democratic politicians, who by and large favor more abortion access, will be getting a boost in November when this amendment is on the ballot, further tipping the scales towards the pro-choice side in the federal government.

That’s all bad news for the pro-life side, but for what it’s worth we think it’s good news for everyone that this issue is now in the hands of the voters. If over 60% of Floridians want this amendment, then the law of the land should reflect the will of the people.

Does the abortion amendment being on the ballot make Florida a competitive state in 2024? For the presidential and Senate races, probably not. Republican dominance in Florida makes it hard to imagine that kind of seismic shift occurring, even with an issue as hot as abortion on the ballot. At the same time, many House Democrats in Florida will likely make safeguarding abortion rights the centerpiece of their campaigns, which could swing some local races and possibly help flip the state House.

In sum, having this amendment to rally around in November is a big opportunity for Democrats, whose enormous spending advantage will, at the very least, force the GOP to invest some of their resources into playing defense in a state they were supposed to easily carry. But we’ll have to see how Democrats campaign on the ballot measure (and how voters react to it) to understand how much of an impact it will have on the election. 

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Under the radar.

Learning loss, falling enrollment, and behavioral problems have continued to persist in U.S. schools since the pandemic, but student absenteeism is potentially the greatest challenge of them all. Chronic absence is defined as missing at least 10 percent of the school year for any reason, a threshold met by an estimated 26 percent of public school students last school year, up from 15 percent before the pandemic. Absenteeism is up across districts of all sizes and socieconomic makeups, though communities with higher rates of poverty are facing the steepest increases. Researchers worry the pandemic has ushered in a fundamental shift in how parents and students view school and say absenteeism could be exacerbating a host of other problems in the education system. The New York Times has the story.

Numbers.

• 62%. The percentage of voters in Florida who said they would vote “yes” on the abortion rights ballot measure, according to a November 2023 poll from the University of North Florida Public Opinion Research Lab. 
• 53%. The percentage of Republican respondents to the poll who said they would vote “yes” on the ballot measure.
• 150,000. The number of registered Republicans in Florida who signed a petition for the proposed amendment barring the state from restricting abortion “before viability” or “when necessary to protect the patient’s health.” 
• 15,200. The approximate increase in the number of abortions performed in Florida over the 15 months following the Dobbs ruling compared to the 15 months prior to the ruling.
• 7. The number of states that have voted on abortion-related ballot measures since the Dobbs ruling. 
• 0. The number of states where measures restricting abortion have succeeded.
• 3. The number of states where measures or amendments protecting abortion are on the ballot in the 2024 election — Florida, Maryland, and New York.
• 8. The number of additional states with pending ballot measures or amendments for the 2024 election — Arizona, Arkansas, Colorado, Missouri, Montana, Nebraska, Nevada, and South Dakota.

The extras.

• One year ago today we wrote about the Wisconsin Supreme Court.
• The most clicked link in yesterday’s newsletter was our ad in the free newsletter for 10 hidden perks of your Amazon membership.
• Nothing to do with politics: Why melting ice caps could affect how we keep time.

Yesterday’s survey: 607 readers answered our survey on Robert F. Kennedy picking Nicole Shanahan as his running mate with 36% saying they were unsure of the pick or had no opinion. “I would like to know more about the person and what her platform is rather than how rich she is and how she acquired the wealth.” one respondent said.

What do you think of the abortion rulings in Florida? Let us know!

Have a nice day.

Filing taxes is a pain, and filing online can be an unwelcome added expense. Now, the IRS is introducing Direct File, a service that will allow free online tax filings for “simple tax solutions,” which the Treasury Department estimates could cover up to a third of all tax filings. This year, the IRS is piloting its program in a dozen states with the hope that at least 100,000 taxpayers will participate. Within five years, the program could save the average filer $160 per year, or a collective $11 billion annually, according to a report from the Economic Security Project released Monday. CNBC has the story.

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