The Florida Supreme Court, on a fateful Friday, found itself at a crossroads, grappling with the weighty decision of whether to overturn longstanding abortion rights protections enshrined in the state’s constitution. This pivotal moment in the legal arena stems from a law championed by Republican Governor Ron DeSantis, a presidential hopeful, which seeks to ban abortions in most cases after a mere 15 weeks of pregnancy.
Should the 15-week ban stand, an even more stringent six-week ban, endorsed by the Republican-led Legislature and signed into law by Governor DeSantis, would automatically come into effect roughly a month after the court renders its judgment.
Seven justices, including five conservatives appointed by Governor DeSantis, lent their ears to the oral arguments presented in Tallahassee. Planned Parenthood, the American Civil Liberties Union, and other plaintiffs vehemently contended that the unique privacy clause in the Florida Constitution has explicitly safeguarded abortion rights for over four decades and must remain in force. Whitney White, an attorney from the ACLU, declared, “Abortion has been a recognized right in Florida for decades. There’s no basis in the text to exclude a decision so personal and so private as whether to continue a pregnancy.”
The state’s legal representatives, however, advanced the argument that when the privacy clause was incorporated through a voter referendum in 1980, few comprehended its scope to encompass abortion rights. Henry Whitaker, the State Solicitor General, posited that the clause primarily pertained to “informational privacy,” such as personal records, rather than abortion.
Whitaker emphasized that an act of the Legislature should only be invalidated if it is unequivocally unconstitutional, underscoring the state’s compelling interest in preserving life throughout all stages of pregnancy.
During the proceedings, several justices pondered whether the court should accord deference to the Legislature on the matter of abortion, particularly since the term “abortion” does not explicitly appear in the privacy clause, and historical debates on this topic remain inconclusive. Chief Justice Carlos Muniz even queried whether the U.S. Supreme Court’s recent repudiation of the Roe vs. Wade standard, as seen in the Dobbs ruling, bore any relevance to the Florida case.
In response to Justice Muniz’s inquiry, Whitney White contended, “Nothing in the Dobbs decision displaces state protections for abortion that were more protective than federal law. States are free to afford that level of protection. That’s precisely what Floridians have done here.”
The justices did not divulge when they would render their verdict, recognizing that cases of such magnitude often require months for deliberation.
The lawsuit seeks an injunction against the enforcement of the 15-week abortion ban, known as HB5, which carries penalties of up to five years in jail and fines of $5,000 for violations. This law remains in effect while the court case unfolds.
The privacy clause found its place in the Florida Constitution following a 1980 voter referendum and was subsequently affirmed by the state Supreme Court to encompass abortion rights. In 2012, voters rejected a proposed constitutional amendment aimed at reversing these decisions.
Florida’s stance is fortified by various anti-abortion groups and at least 19 Republican-led states, which have filed amicus curiae briefs. These states assert that state legislatures should decide the abortion issue rather than the courts, arguing that the current legal framework imposes an unwelcome regime on the people and undermines democratic tradition.
On the opposing side, several groups, including the American College of Obstetricians and Gynecologists, the American Medical Association, and Floridians for Reproductive Freedom, have filed briefs in support of the challengers.
The text of Florida’s privacy clause is explicit: “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.”
The 15-week ban at the heart of this legal battle does include exceptions for cases where abortion is necessary to save a woman’s life, prevent serious physical harm, or in instances where a fetus has a terminal medical condition incompatible with life outside the womb.
Notably, the six-week ban, introduced in the state Legislature by GOP Representative Jennifer Canady, wife of Supreme Court Justice Charles Canady, awaits enactment and would come into force if the 15-week ban is upheld. Justice Charles Canady has not indicated any intention to recuse himself due to his relationship with Representative Canady, and no motions for recusal have been submitted.
Charles Canady, during his time as a congressman in the 1990s, was an advocate for bills aimed at prohibiting so-called “partial-birth abortion.”
Earlier this year, a Leon County judge ruled that the 15-week ban violated the Florida Constitution and issued a temporary injunction to block its enforcement. However, an appeals court later overturned this injunction, leading to the current case before the state Supreme Court. Furthermore, various groups are currently collecting petition signatures in a bid to place a proposed constitutional amendment on the 2024 ballot, securing abortion rights in Florida up to approximately 24 weeks of pregnancy, a stage generally deemed as the point of fetal viability.
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