Both sides in Florida’s closely-watched abortion challenge made their arguments Friday before the state Supreme Court on whether a 15-week abortion ban signed into law by Gov. Ron DeSantis should be upheld.
If upheld, the ruling would trigger a six-week abortion ban to go into effect after 30 days, which was approved by the Legislature this year and would turn Florida into a state with one of the most restrictive laws in the country.
In their argument on Friday, abortion providers relied on protections provided for decades under the state constitution to make their case for why access should be allowed until fetal viability, which is around 24 weeks. Attorney Whitney White with the American Civil Liberties Union argued the Florida Constitution’s unique privacy clause for more than 40 years has protected a right to abortion in the state and should remain in force.
“Abortion has been a recognized right in Florida for decades,” White said, representing providers from across the state, including Planned Parenthood. “There’s no basis in the text to exclude a decision so personal and so private as whether to continue a pregnancy.”
The privacy clause was put into the Florida Constitution by a voter referendum in 1980 and later affirmed as including abortion rights by the state Supreme Court. Voters rejected a proposed constitutional amendment in 2012 that would have undone those decisions.
The state argued that the privacy clause in the Florida Constitution does not apply to abortion. State Solicitor General Henry Whitaker told the justices the clause was mainly meant to cover “informational privacy” such as personal records and not “decisional privacy” such as abortion.
“An act of the Legislature should not be struck down unless it is clearly unconstitutional,” Whitaker said of the new abortion bans enacted by lawmakers. “We think the state has a compelling interest in all stages of pregnancy in preserving life.”
Of the seven state Supreme Court justices who will rule on the suit against the abortion ban, five were appointed by DeSantis, who signed the 15-week ban into law in July 2022.
Several justices appeared skeptical of the abortion providers’ arguments Friday, questioning White on how she can prove the 15-week ban would lead to “irreparable harm” and asking why there’s no evidence as to whether Florida voters in 1980 were even aware that privacy included the right to access abortions.
The constitutional provision states: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.”
Chief Justice Carlos Muñiz wondered aloud if the court should have the right to be the final call on abortion when the Florida Legislature already has had their say and voted for abortion restrictions.
Muñiz also asked White if the U.S. Supreme Court’s invalidation of the Roe v. Wade federal standard that made abortion legal in the Dobbs ruling had any impact on the Florida case.
“Should we take that into account? Should it matter to us that the entire foundation of the asserted right here that the (U.S.) Supreme Court has now said was egregiously wrong?” Muñiz asked. At one point Friday, Muñiz said that the 1973 Roe v. Wade decision “might have been an abomination” and referred to fetuses as “human beings”
White responded: “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.”
White also said a potential court ruling that says the privacy clause does not include abortion could have “a destabilizing impact on other areas where the clause has been applied, such as parental rights and medical decision making.”
On Friday, Muñiz and Justice Jamie Grosshans acknowledged that a ruling in the state’s favor would affect myriad other precedents unrelated to abortion that have relied on a broad interpretation of privacy rights over the past 30 years.
The privacy argument at the basis of Friday’s discussion was also used in the landmark Roe v. Wade decision that enshrined the federal right to abortion in 1973. U.S. Supreme Court justices rejected that argument in their decision to overturn Roe last summer.
The Florida lawsuit seeks an injunction blocking enforcement of the 15-week abortion ban known as HB5, which includes potential jail time of up to five years and $5,000 in fines for violations and remains in effect as the court case plays out. HB5 went into effect in 2022, shortly before Roe was overturned.
The 15-week ban includes exceptions allowing an abortion to save a woman’s life or prevent serious physical harm and in cases in which a fetus has a terminal medical condition “incompatible with life outside the womb.”
The entire hearing on Friday was over in about an hour but news conferences held by organizations for and against abortion restrictions continued throughout the day.
There is no set time frame for when the Florida Supreme Court will return a decision, and no indication from the justices on Friday about when they might rule.
If the 15-week ban is upheld, an even stricter six-week ban passed by the Republican-led Legislature this spring and signed by DeSantis would automatically take effect 30 days after the court makes a decision.
At a news conference Friday after the hearing, Kelly Flynn, CEO of Women’s Choice Clinics, said her Jacksonville clinic is busy with women from Florida and nearby states with more restrictive bans who are traveling hundreds of miles out of desperation for care.
Florida has an estimated 4 million women of childbearing age. The state Supreme Court’s ruling will affect not only abortion access in Florida, but as many as 15 million women across the South and even in the Caribbean. Women who live in places where abortion is even more restricted routinely travel to Florida for access to the procedure.
Some restrictions that apply to abortion will remain in place regardless of the court’s decision: A 24-hour waiting period between the initial consultation and the procedure, and a requirement that parents must give consent before a minor can have an abortion.
Most abortion-rights supporters are bracing for a loss at the conservative Florida court. The court during the past four years has reversed legal precedents in other cases.
“There is no doubt where the leanings of this court is, but I do believe that the legal arguments are there to uphold the special privacy protection that we have always had, here in the state of Florida,” Senate Minority Leader Lauren Book, D-Davie, told reporters after Friday’s arguments.
Republican Attorney General Ashley Moody, who attended the arguments, told reporters she supports the law.
“I happen to believe, very passionately, that life needs to be protected and that lawmakers should have the ability to do that,” she said.
Reproductive rights advocates meanwhile also are working to get a proposed constitutional amendment on the 2024 ballot. The committee led by Floridians Protecting Freedom has gathered enough voter signatures from across the state to send the wording of their proposed constitutional amendment to the Florida Supreme Court for review.
The constitutional amendment must get at least 60% of the vote to pass.
“With 60% needed, it could be close,” said Mary Ziegler, a professor of law at UC Davis who chronicles the legal, political and cultural debate around abortion.
Ziegler believes a ruling that triggers a six-week ban could energize voters.
“There could be backlash to the decision and lead to a huge voter turnout,” she said. “Floridians can wait to see the Supreme Court decision, but likely they will have the final word. They get to vote on the ballot initiative and the retention of the Supreme Court Justices.”
Information from the Associated Press, The New York Times and the News Service of Florida was used to supplement this report.
Sun Sentinel reporter Cindy Goodman can be reached at cgoodman@sunsentinel.com.
