Supreme Court of Florida Hears Abortion Case


This morning I listened to the oral arguments at the Florida Supreme Court in Planned Parenthood of Southwest & Central Florida v. Florida. The case involves a Florida state constitutional challenge to Florida’s ban on abortion after fifteen weeks. The stakes are high: if the Supreme Court upholds the law, then a subsequent law that bans abortion after six weeks goes into effect thirty days later. Since women often do not realize they are pregnant that early, the Court’s ruling may essentially eliminate the right to abortion in Florida.

Unfortunately, it is widely expected that the Florida Supreme Court will uphold the law. Like the U.S. Supreme Court, the Florida Supreme Court has taken a hard turn to the right. All seven Justices have been appointed by Republicans, five of them by Gov. DeSantis. The question, then, is perhaps not whether the Florida Supreme Court will eliminate abortion rights but how.

Unlike the U.S. Constitution, the Florida Constitution explicitly protects the right to privacy. Article I, section 23 of Florida Constitution, added by a 1980 voter referendum, states: “Right of privacy: Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.”  It is hard to imagine a greater government intrusion into your private life than being forced to continue an unwanted pregnancy. Indeed, the Florida Supreme Court has made this exact point in 1989 when holding that the right to privacy creates a right to abortion. “Florida's privacy provision is clearly implicated in a woman's decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one's body that one can make in the course of a lifetime.” In re T.W., 551 So. 2d 1186, 1192 (Fla. 1989).  In 2017, the Florida Supreme Court affirmed both that the right to privacy covers abortion andthat abortion regulations would trigger strict scrutiny – the highest level of scrutiny courts apply to constitutional rights. Gainesville Women Care, LLC v. State, 210 So. 3d 1243 (Fla. 2017).

How, then, might the Florida Supreme Court justify overruling its precedent? One series of questions from the Justices suggests that some might prefer to dodge the substantive issue and rule on procedure rather than the merits. There were many questions, for example, about third party standing. My apologies to civil procedure enthusiasts, I did not take as many notes on this line of questioning.

Alternatively, the Florida Supreme Court seemed to be trying out the argument that the original public meaning of the right to privacy does not extend to a right to abortion because there was little discussion in the legislature or popular press about abortion at the time the Florida Constitution was amended, and surely there would have been if the right to abortion was understood to be on the table. In other words, as one justice asked, if the right to privacy included a right to an abortion, why weren’t there op-eds to that effect?  This argument dovetails with the state attorney’s claim, which is that voters in 1980 were concerned only with informational privacy.   

Whitney White, representing Planned Parenthood and its allies, did a superb job parrying all these questions.  There is no need to consider what the people of Florida thought because the language of the amendment is unambiguous. In any event, by 1980—a few years after Roe v. Wade was decided—it was well understood by the general public that “right to privacy” encompassed the right to abortion. Certainly there was no doubt of this in contemporaneous Florida legal decisions, which also contribute to the original public meaning. The topic of abortion rights was not hotly debated in Florida at the time of the amendment because the U.S. Supreme Court’s decision in Roe v. Wade had settled the issue at the federal level. Moreover, in order to overrule precedent, this Florida Supreme Court must find that the its prior decisions were clearly erroneous.  The able Ms. White also observed that adopting the narrow reading urged by the state would destabilize many other rights that have relied on a broader understanding of the right to privacy, such as parental rights.   

At one point, Chief Justice Muniz tipped his hand when he expressed concern that reading the right to privacy as protecting abortion would "essentially take a whole class of human beings and put them outside of the protection of the law, essentially, in the sense that if the legislature wants to protect those human beings, they are precluded by the constitution of Florida from doing that.” Personally, I might have been tempted to point out that his concern rests on a religious proposition (that life begins at conception) that is not even close to being universally shared. But rather than challenge this viewpoint, Ms. White instead argues that revoking abortion rights and compelling pregnancy would allow the state to force someone to take increased risk and harm for the sake of others, which is unprecedented.

These are all excellent arguments and will likely fail. There is a campaign to put abortion back on the ballot in Florida, this time explicitly (or rather, even more explicitly). If you are registered in Florida, by all means sign the petition and make sure to vote next November.