The Six-Week Abortion Ban in Florida Is Only the Beginning

Florida has long been a destination state for abortion-seekers in a region defined by sweeping criminal bans. And, despite being under Republican control, Florida had long been a place with one of the highest abortion rates in the nation. Yet this week, a six-week ban signed into law by Gov. Ron DeSantis in April 2023 is set to go into effect. Florida’s law will cut off access for a large number of patients, many of whom will have to travel as far as North Carolina and Virginia, where clinics have already reported long waiting periods and struggles to meet demand.

Six-week bans block a sizable share of abortions—as of 2021, nearly 60 percent of procedures in Florida occured after that point in pregnancy. But the history of six-week bans like Florida’s suggests that this will not be the stopping point for the anti-abortion movement. Six-week bans were designed to be a stopgap in the fight for fetal personhood. And fetal personhood, which establishes that the word “person” in a law or even the Constitution applies to fetuses and embryos, could have implications not only for abortion but also for IVF and perhaps common contraceptives. That may be just what is coming next in Florida.

Janet Folger Porter, a veteran anti-abortion advocate, had the idea for a six-week ban in the late 1980s. She was looking for a way to weaken the right to choose abortion, which the Supreme Court then protected until the point of fetal viability. Porter argued that fetal cardiac activity was just as objective a line to draw as viability—she and her allies often quipped that the heartbeat was the universal sign of life.

Porter also believed that a six-week ban could be a critical step toward establishing that the word “person” under the 14^th Amendment applied the moment an egg was fertilized, and that liberal abortion laws—or state constitutional protections for reproductive liberty—denied fetal persons equal protection and due process of law. She argued that six-week bans would be a perfect step toward personhood because they could dramatize claims about “the injustice and inhumanity of abortion,” and even rolled an ultrasound machine into legislative hearings to permit “unborn children to ‘testify.’ ”

For a while, Porter’s idea did not catch fire. Then Brett Kavanaugh was confirmed to the Supreme Court, and states across the South began passing heartbeat bills. Some, like Florida’s, made performing or actively assisting abortions that violated the ban a felony. Others, like Texas’ S.B. 8, created a bounty scheme, allowing anyone to sue an abortion provider or anyone who “aided or abetted” them for at least $10,000. Six-week bans captured so much interest not because they struck anti-abortion leaders as the best ultimate policy goal but because Republican leaders wanted a way to undermine Roe that would have high odds of succeeding before the court’s reconstituted conservative supermajority. That, Porter promised, was just what a six-week ban could do.

Florida Republicans had desperately needed a way out of the abortion conflict. The state was solidly under Republican control, yet to the frustration of the anti-abortion movement, it had been slow to pass a sweeping ban. Florida had a smaller group of anti-abortion voters than many of its neighbors; as recently as 2012, voters had rejected an effort to undo a right to abortion then recognized by the state supreme court. The state still seems more pro-choice than many in the South. DeSantis could frame the ban as a reasonable compromise, complete with exceptions for rape and incest. And yet anyone in the anti-abortion movement would understand how stringent a six-week ban really was—and would understand such a ban as a step toward fetal personhood.

But there is no reason to think that six-week bans will be enough for Florida abortion opponents going forward. Roe is gone. State anti-abortion groups have already begun to push bans from the point of fertilization.

And letting each state set its own policy is not what the movement wants, either. The goal is a nationwide ban. In the short term, conservative advocacy groups led by the Heritage Foundation propose that the Comstock Act, a 19^th-century obscenity law, is actually a de facto ban on all abortion. These advocates ignore decades of precedent to interpret language in the 1873 law referencing abortion to create a federal ban on mailing or receiving any information or items designed, adapted, or intended for abortion. Donald Trump, who has consistently refused to answer questions about whether his Department of Justice would treat Comstock as a ban, may well be planning to fulfill the expectations of anti-abortion leaders who have predicted he will transform Comstock into a nationwide abortion ban voters would never enact.

And even the Comstock Act is not intended to be the endpoint. Anti-abortion groups in Florida and elsewhere argue that liberal abortion laws like the ballot initiative voters will consider in November violate the state and federal Constitution by denying fetal rights.

For example, when Florida Republicans began pushing a bill recognizing fetal personhood in a specific context—a wrongful death bill recognizing fetuses as unborn children—Republicans withdrew it after the Alabama Supreme Court issued a decision recognizing embryos as persons and temporarily bringing a halt to IVF. While voters bridled at the thought of a bill that sounded too much like the Alabama decision, anti-abortion leaders chastised Republicans for not going far enough toward recognizing the rights of fetuses. When the Florida Supreme Court allowed Florida’s reproductive rights ballot initiative to go forward, several of the conservative justices expressed approval of the idea of state constitutional personhood. A leading anti-abortion constitutional theorist followed up by calling for lawsuits to explore whether the Florida Supreme Court would recognize fetal constitutional rights.

There is no doubt that Florida’s six-week ban will be one of the most consequential to go into effect since the demise of a right to choose abortion in 2022. But Florida voters will not just be deciding whether they approve of the new reality on the ground. They will also have to decide whether to open the door to a campaign for much more sweeping fetal rights.