If you’re looking for the next battle in the constitutional fight over abortion, feature Florida. The United States Supreme Court may have concluded that, as Justice Samuel Alito wrote, the United States Constitution does not include a right to abortion. That right, however, is enshrined in the constitution of the Sunshine State, at least according to the Florida Supreme Court. And there you have it, the next front in the abortion wars.

The United States Supreme Court had based Roe v. Wade on a right to privacy that it had previously discovered in the emanations formed by penumbras of the Bill of Rights, a discovery that was rejected by the Supreme Court last week. It turns out though, that Florida and three other states have a right of privacy that is not hidden in any penumbras or emanations, but is embedded in the black letter text of the state constitutions themselves.

Such texts bid to be a way for abortion rights activists to force the hands of state legislators who may try to limit or even ban abortion. Florida itself has passed a law, poised to take effect on Friday, banning abortion after 15 weeks, with some exceptions. Yet a state circuit court judge at Tallahassee is already weighing whether this law conflicts with Section 23 of Article I of the Florida Constitution, which guarantees a “Right of privacy.”

The Center for Reproductive Rights insists the “right of privacy in the Florida Constitution encompasses the right to abortion,” and its “protections are broader” than the federal Constitution’s. The right was in 1989 endorsed by the state high court, in a ruling citing the state parchment, which says “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.”  

The ruling in the case of In re T.W. said “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy” and “We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime.” Quoting Justice Harry Blackmun’s opinion in a prior abortion case, the ruling found a “woman’s right to make that choice freely is fundamental.”

The Florida high court ruling notes that while “the federal Constitution traditionally shields enumerated and implied individual liberties from encroachment” — whether from state or Federal governments — “state constitutions may provide even greater protection.” Florida voters had to use the amendment process in 2004 to allow for a parental notification law for minors seeking abortions. That law was passed by the legislature in 2020.

In the current case, Florida abortion rights advocates’ hopes are tempered by the fact that, as Politico reports, “the makeup of the current state high court has dramatically shifted to the right” and  “the court could interpret the privacy clause differently and uphold the 15 week ban.” Three of the court’s seven judges were appointed by Governor DeSantis, who signed the law in question limiting abortion. A ruling in the case is expected Thursday.

A right to privacy is also enshrined in the state constitutions of California, Alaska, and Montana, the Center for Reproductive rights says, and there are constitutional protections for abortion in Arizona, Iowa, Kansas, Massachusetts, Minnesota, New Jersey, and New Mexico. While several of those states are liberal polities that have already legalized abortion, count on more court cases like Florida’s in other states seeking to limit the procedure.

Respect for federalism suggests letting the chips fall where they may. In the Court’s opinion overturning Roe, Justice Alito lamented how unelected judges had “arrogated” to themselves “authority” over abortion, writing: “We now overrule those decisions and return that authority to the people and their elected representatives.” Is it in the spirit of that ruling for a new batch of judges, rather than legislators, to decide this now for the states?