Fla. Supreme Court justices question long-standing abortion protections

Members of Florida’s conservative Supreme Court appeared skeptical during a hearing Friday that the state constitution was intended to protect abortion rights — a perspective that could pave the way for one of the country’s strictest and most far-reaching abortion bans.

The case, brought by Planned Parenthood and other Florida-based abortion providers, centers on a provision in the Florida Constitution that protects the right to privacy, added by voters in 1980 and long interpreted by courts as a safeguard against abortion restrictions.

Several justices drilled the lawyers on both sides of the case on how they could know what was in the mind of Florida voters when they passed the privacy amendment. The justices asked: Were they thinking about the government collecting and distributing records — informational privacy — or where they thinking about making decisions in private, like whether to have an abortion?

“In a legal sense, privacy may have included abortion, but it doesn’t seem like the people of Florida really had an actual debate over this when it was adopted,” said Chief Justice Carlos Muñiz.

The state Supreme Court decision could have a two-step impact on abortion access in Florida. While justices will consider the constitutionality of the state’s existing 15-week ban, which took effect last summer, their ruling will also determine the fate of a far stricter law passed this spring that would outlaw abortion after six weeks of pregnancy. Florida’s six-week ban is written to take effect only if the Supreme Court green-lights the 15-week law, 30 days after a potential ruling.

During the hearing, Whitney White, the attorney representing the abortion providers, argued that women’s lives are at stake. She described doctors “finding their hands tied” by the 15-week ban, unable to treat medical complications during pregnancy until patients develop life-threatening conditions.

“These injustices have been ongoing for a year, and if this court doesn’t step in now, there is an even more dangerous six-week ban waiting in the wings,” she said.

The state Supreme Court — which has struck down several abortion restrictions over the past few decades — has been reshaped by Florida Gov. Ron DeSantis (R) into what many consider one of the most conservative courts in the country. Several judges have roots in the antiabortion movement.

At the end of the hearing, Muñiz asked White whether the court should consider the U.S. Supreme Court ruling that overturned Roe v. Wade in June 2022. He appeared to suggest that he considers fetuses to be human beings.

“You are asking us to essentially take a whole class of human beings and put them outside the protection of the law,” he said. The Supreme Court, he added, has “eviscerated” the idea that privacy protections extend to abortion rights.

“We now know that the same entity that created that understanding of the right of privacy has told us it was a mirage,” he said. “Should we take that into account?”

White told the court that the ruling in Dobbs v. Jackson Women’s Health Organization — which overturned the federal right to an abortion — should not matter.

“Nothing in the Dobbs decision displaces preexisting state constitutional protections for abortions that were more protective than the federal law,” she said.

Both abortion bans passed by Florida lawmakers include exceptions for the life of the mother and fatal fetal anomalies. The six-week ban includes additional exceptions for rape and incest and would also provide $25 million in annual state funding for crisis pregnancy centers, organizations that aim to dissuade people from getting abortions.

The outcome of the case could have sweeping implications for abortion access across the country. Last year, more than 82,000 people got abortions in Florida, far more than were previously reported in any of the 17 states that have now banned all or most abortions. Of those states, Texas had the most reported abortions before the new wave of antiabortion laws, with more than 50,000 abortions performed in the state in 2019.

The 15-week ban has compelled many patients to seek abortion care elsewhere, including those with life-threatening pregnancy complications. A six-week ban in Florida would impact tens of thousands of more people, further straining already full abortion clinics in states such as North Carolina and Illinois.

Post-Watergate concerns about civil liberties in part led to the 1980 Florida constitutional privacy amendment — which was passed by about 60 percent of state voters — granting “the right to be let alone and free from governmental intrusion into the person’s private life.” Abortion rights advocates at the time viewed the amendment as an insurance policy in case Roe v. Wade someday fell.

The clause has buttressed some of the strongest and broadest privacy laws in the country, making Florida a destination for abortion access long before Roe was overturned.

But several of the justices argued that Floridians did not necessarily know they were voting to protect abortion rights in 1980.

“How would you respond to the fact that there is really virtually no sort of attention given to this subject in 1980?” asked Justice Jamie Grosshans. “Your brief doesn’t have very many supporting documents to show that that was the understanding of any voter in the state in 1980. Abortion has always been a divisive issue — it was divisive in 1980 — why is there not more that emphasizes your view of what that term meant at the time?”

White responded that without knowing what voters were thinking, the words of the clause speak for themselves.

“The plain text is paramount,” she said. But she added that one reason for the absence of that debate “could have been a general acceptance that Roe v. Wade was the law of the land at the time.”

But then Justice John Couriel interrupted: “But you don’t even see that. You don’t even see any op-eds saying this is about Roe.”

DeSantis selected five of the seven justices on the state’s high court, the most selected by any Florida governor in a generation.

DeSantis’s nomination of Muñiz, the chief justice, was cheered by an antiabortion group that described the judge’s family as supporters of a Tallahassee crisis pregnancy center. Grosshans, another DeSantis pick, was active with Christian legal advocacy groups that oppose abortion before she joined the court.

Justice Charles Canady, a former Republican congressman appointed by then-Gov. Charlie Crist (R), was public about his staunch antiabortion views when he sponsored legislation in 1995 to outlaw abortions later in pregnancy. His wife, state Rep. Jennifer Canady (R), co-sponsored the six-week abortion ban. Canady did not ask questions during Friday’s hearing.

Paul Flemming, the court spokesperson, declined to comment for this story on behalf of the justices.

The court’s decision could have political implications for DeSantis, who is running for president. He has cited the six-week ban as evidence of his conservative credentials, which could prove helpful in the Republican primary, but he has drawn criticism from some antiabortion activists for his failure to back a proposed nationwide ban.

If the court upholds the 15-week ban, abortion rights advocates are hopeful that voters could eventually restore access to abortion. Florida is one of several states where abortion rights groups have launched a campaign to get a measure enshrining abortion protections into the state constitution on the November 2024 ballot.

“This ballot initiative is the only way to reverse course for the 15-week or six-week ban in a time-effective manner,” said Lauren Brenzel, campaign director for Floridians Protecting Freedom. She added that if the six-week ban goes into effect, “the devastation that that will cause for Floridians cannot be overstated.”

Nearly 900,000 signatures have to be certified as valid by Feb. 1 for the measure to go before voters next year. The group says it has enough signatures verified by the state to trigger a Florida Supreme Court review of the language, a key milestone in the effort. The Florida secretary of state moved Thursday to begin that process, according to a letter sent to the state attorney general, which the campaign confirmed.

Abortion rights supporters are aiming to build on a string of recent victories at the ballot box in states such as Michigan, Kansas and Kentucky. But in Florida, the campaign faces a harder path to victory: Unlike the other states, the constitutional amendment must garner at least 60 percent of the vote.