Ron DeSantis' war against free speech is really all about abortion

DeSantis’ “win” in Florida is an ominous sign for pro-choice prosecutors everywhere

Published February 8, 2023 5:38AM (EST)

Ron DeSantis | Protesters marching to denounce the U.S. Supreme Court decision to end federal abortion rights protections (Photo illustration by Salon/Getty images)
Ron DeSantis | Protesters marching to denounce the U.S. Supreme Court decision to end federal abortion rights protections (Photo illustration by Salon/Getty images)

On the eve of what would have been Roe v. Wade's 50th anniversary, a federal judge handed Florida Gov. Ron DeSantis a victory that could further imperil abortion access nationally.

Last month, federal district court judge Robert L. Hinkle ruled that the Republican governor had violated both the U.S. and Florida constitutions when he removed twice-elected Tampa prosecutor Andrew Warren last August after Warren signed a coalition statement affirming support for abortion access and opposing the Dobbs decision. It was a direct attack on the independence of local prosecutors who publicly affirm their support for reproductive rights. Nevertheless, Warren remains without a job. He has vowed to continue his fight for reinstatement, but if the ruling remains undisturbed, other state leaders like DeSantis will be emboldened to go after prosecutors like Warren — and they, too, might get away with it. In fact, we're already seeing these attacks in other states.

So while the decision was not about the constitutionality of yet another state abortion ban, Warren's case is a bellwether.

The facts around Warren's removal came out during a trial in December when Warren put on a convincing case that showed DeSantis was motivated by a familiar mix of factors that include demonstrating his power over a political opponent and gaining public attention for doing so. The governor's team had even calculated the value of earned media he received as a result of removing Warren at $2.4 million. 

Warren initially drew DeSantis's ire for implementing policy changes after an independent analysis found racial differences in who was being stopped for bike and pedestrian violations by local police. Warren then became the subject of DeSantis' ire for exercising his prosecutorial discretion in other ways — like forgiving low-level offenses in response to court backlogs created by the COVID-19 pandemic. Ultimately, public statements signed by Warren about both abortion and gender-affirming healthcare apparently pushed DeSantis over the edge.  

This fight is not just about Andrew Warren, and its impact is not confined to Florida.

Judge Hinkle was clearly swayed by the evidence against DeSantis. In the 59-page decision, he concluded that DeSantis disagreed with Warren politically and ideologically, and planned to take down someone he perceived as a "woke," George Soros-backed, reform prosecutor. Warren's public statements were held against him — a violation of his constitutional rights.

The judge also said that DeSantis abused his removal power under the Florida constitution by falsely asserting that Warren had neglected his duties as a prosecutor. In removing Warren last August, DeSantis issued a lengthy public proclamation asserting that Warren was derelict by issuing blanket non-prosecution positions on a variety of issues, including abortion care. The evidence showed that this was untrue: "The assertion that Mr. Warren neglected his duty or was incompetent is incorrect," Judge Hinkle wrote. "This factual issue is not close."

Nevertheless, while the judge found that DeSantis did in fact violate the First Amendment, he could not reinstate Warren.

On the First Amendment issue, Judge Hinkle concluded that the public statements themselves — including those supporting abortion rights — were not enough of DeSantis' motivation for Warren's removal, a necessary component of the proof, but still decided that the question "is close and could reasonably be decided either way." On the abuse of power, DeSantis won on a technicality. An arcane legal concept called sovereign immunity — that you can't sue the king — barred the federal judge from ordering a state official to follow his own state's law.

It was an empty vindication for Warren, who remains in the same position as the day he was forcibly removed from his Tampa office. For his part, Warren has said he will continue to fight Desantis' decision, and he has options both in state and federal court available to further pursue his case. But this fight is not just about Andrew Warren, and its impact is not confined to Florida.

As this case shows, the Dobbs decision has put prosecutors at the center of the abortion fight once again. Wade in the famed Supreme Court case was the Dallas prosecutor, after all. Many prosecutors like Warren have expressed their support for reproductive justice, in spite of (and often because of) the growing criminalization of abortion and reproductive health more generally. 

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Now that state legislative sessions have begun, several chambers across the country, including in Texas and Missouri, are already considering bills that would limit the jurisdiction, authorities, and discretion of local prosecutors. These bills take aim at, or are motivated by, authority relating to abortion prosecution. In other states, governors already have the power to remove or begin removal efforts against local prosecutors, based on their perception of job performance. As district attorneys and prosecutors use their inherent authority to implement reforms on charging decisions, bail, and sentencing — all steps that Warren lawfully and legitimately took — reactive state legislators and executives are taking aim at their powers. 

Last month's ruling concluded that laws had been violated but no remedy could be implemented. For now, Andrew Warren and the thousands of Floridians who elected him into office feel the brunt. The people's will has been displaced by an abuse of power — documented and decided by a court of law. Yet the wrong has not been made right. For the future of reproductive justice in our country, it is a troubling precedent that needs prompt correction. 

By Jonathan Miller

Jonathan Miller is Chief Program Officer of Public Rights Project

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Abortion Andrew Warren Commentary Florida Free Speech Prosecutors Ron Desantis