Abortion rights advocates in Florida may have a powerful tool to fight against any future legislation banning abortions: the state’s decades-old privacy amendment to the state’s constitution.
But the increasingly conservative Florida Supreme Court, and government Ron DeSantis’ power to appoint a new justice to fill a pending retirement, Roe v. Wade-guaranteed abortion could jeopardize the amendment’s application for access.
The state’s constitution guarantees the right to privacy, and this standard was cited by Florida Supreme Court justices more than three decades ago to overturn a state law requiring parental consent for abortion.
“We can imagine some of the more personal or personal decisions about our bodies that a person may make over the course of a lifetime,” reads the 1989 ruling.
State lawmakers have since approved a series of increasingly tough abortion restrictions, but the right to privacy has been court-confirmed.
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Abortion rights advocates have been wary of the conservative DeSantis Court, fearing that justices might reinterpret that right to privacy. Even two years ago, she decided not to challenge a new parental consent law, fearing it could lead to judges determining the privacy no longer applies to abortion.
Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, told USA Today Network Florida last year, “It will open Florida to a wide range of abortion restrictions that were previously found to be unconstitutional.”
And, after Justice Alan Lawson retires on August 31, DeSantis will have a chance to appoint a replacement. That new justice would mean that DeSantis has named four of the seven judges on the court since taking office in 2019.
A nationwide debate on abortion intensified on Tuesday after Politico published a draft opinion of the US Supreme Court showing that a majority of judges have voted to overturn the 50-year-old’s ruling in Roe v. Wade.
Hours later in an extraordinary statement, Chief Justice John Roberts confirmed the authenticity of the draft and announced that the court had opened an investigation into the leak. The court is expected to issue its opinion in late June or early July.
Florida’s Right to Privacy
More than 40 years ago, Floridians voted to ensure the right to privacy in the state’s constitution, by a margin of 60%. While 10 other states have similar privacy protections, the Sunshine State is the most comprehensive, according to the National Convention of State Legislatures. It is called:
The amendment states, “Every natural person has the right to be alone and to be free from governmental interference in the private life of the individual, as provided herein.” Its single carving prevents the amendment from being used to circumvent the laws of public record and open meetings.
Only a decade later, the Florida Supreme Court ruled to extend the privacy provision to abortion.
Legislators passed a law requiring that minors must obtain parental consent before having an abortion, unless they can make the case to a judge that they must be an exception through a process called judicial bypass.
A 15-year-old high school student took that path in 1989, arguing that she was mature enough to make decisions on her own, had gotten approval from the child’s father, and told her ailing mother about the pregnancy. Telling in “he will be put to death”.
The matter reached the state’s highest court, which sided with the juvenile and struck down the parental consent bill.
“Florida’s confidentiality provision is expressly implied in a woman’s decision as to whether or not to continue her pregnancy,” the court’s opinion read.
The state’s right to privacy was also important to judges who struck down a 1999 parent’s notice law approved by the Florida Legislature for minors seeking abortion.
In its 2003 ruling on the law – which never took effect – the court said that “parents and minors are free to do as they please without government interference in this regard.”
‘A revolutionary step’
Daniel Tilley, the legal director of the American Civil Liberties Union of Florida, said in a statement to USA Today Network Florida that Floridians have twice rejected attempts to undermine constitutional protections for abortion.
In 2012, 55% of voters turned down a proposed amendment that the state’s constitution “could not be interpreted to make the comprehensive rights to abortion enshrined in the Constitution of the United States.”
Then, in 2018, the Constitution Amendment Commission considered an amendment that would have limited the privacy clause to cover informational privacy only. The amendment to the commission’s subcommittee failed.
“Since safe access to abortion is what the Florida Constitution provides and what Floridians prefer, opponents of abortion have no way of constitutionally restricting that access, either through a ballot initiative or through the Legislature,” Tilley he said. “Their only route is through the Florida Supreme Court instead, which is the only entity that can interpret Florida constitutional law as final.”
Whether the High Court will reverse its own precedent remains to be seen.
Tilly said it would be “a revolutionary step that could not only jeopardize meaningful access to abortion in Florida but would also invite significant additional intrusion by the legislature into the daily lives of Floridians.”
DeSantis, speaking to reporters in Fort Myers on Thursday, said he was anticipating a legal challenge to the recently passed 15-week ban and pointed to his right to privacy.
“There’s case law that’s out there that we have to overcome to be able to maintain those protections,” DeSantis said. “I think we can do it, but it thinks something like this is going to happen after the law goes into effect.”
While a challenge to the amendment hasn’t made it back to the Florida Supreme Court since the parent’s notice ruling nearly 20 years ago, it does allow a 24-hour waiting period before challenging a state law at the circuit court level. is needed. A woman can have an abortion.
Opponents said the law violated a constitutional right to privacy, but Circuit Judge Angela Dempsey ultimately upheld the law, saying she “does not believe the 24-hour waiting period is a significant intrusion into that right.”
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State Representative Anna Escamani, D-Orlando, acknowledged Tuesday that it was becoming clear that abortion rights advocates did not believe state or federal-level courts would share their views.
“I don’t think it’s smart or reasonable or realistic for us to put all our hope on the courts,” Escamani said. “It’s been clear for many years … we’ve been expecting it since (President) Trump was elected. When Trump was elected and was able to appoint as many Supreme Court justices, it was the final game. It was her goal to eventually ban abortion on a national level, to find a way to restrict access to abortion.