Florida Supreme Court justices on Friday seemed sympathetic to the argument from the government that the state constitution does not protect abortion, a view that could pave the way for a sweeping abortion ban to become law.
The lawsuit challenging the current 15-week ban was brought by a group of Florida-based abortion providers, including Planned Parenthood.
Their central argument was that the law violates the state’s constitutional right to privacy, which voters approved in 1980 and the Florida Supreme Court in 1989 said provides a fundamental right to an abortion.
The state argued the nearly 35-year-old ruling was wrong, and is banking on a much more conservative court reshaped by Gov. Ron DeSantis (R) to agree.
Five of the seven justices currently on the court were appointed by DeSantis, and several have deep connections to the anti-abortion movement.
Justices questioned lawyers on both sides on how they knew what voters were thinking more than 30 years ago when they adopted the privacy amendment.
The state argued Florida’s Constitution protects “informational privacy” only, and had nothing to do with abortion.
But Whitney White, the attorney representing the abortion providers, said legislators were aware of the implications, especially given that abortion was legal under Roe v. Wade, the decades-long precedent struck down by the U.S. Supreme Court last year.
“There’s evidence in the historical record that legislators were fully informed and fully on notice that the terms of the privacy clause were broad, that they would incorporate existing federal privacy rights, and that that included decisional autonomy rights such as abortion,” White said.
White argued that since there was no way to actually know what voters were thinking in 1980, the state Supreme Court must view the plain text of the constitutional provision, which states that a person “has the right to be let alone and free from governmental intrusion in the person’s private life.”
The state’s court brief, along with those from other groups supporting the ban, cited numerous interviews from legislators and newspaper op-eds from the time to show that there was no mention of abortion in the context of privacy rights.
“It was explained and sold to the people solely on informational privacy,” said Henry Whitaker, Florida’s solicitor general.
Chief Justice Carlos Muniz appeared to agree.
“It seems like the record at most shows that, 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 that when this was adopted,” Muniz said.
Muniz later called the U.S. Supreme Court’s 1973 Roe v. Wade ruling that established a right to abortion as an “abomination,” and also indicated he believes a fetus is a human being that needs legal protections.
“You’re asking us to 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,” he said.
There is no timetable for when the court will issue a decision, but the outcome will determine not only the future of abortion in Florida but also across much of the South.
If the justices decide in favor of the state and say there is no right to an abortion, the decision would automatically trigger an even stricter law that will ban abortions after six weeks.
DeSantis, who is running for president in 2024, signed the six-week ban into law in April and it is set to take effect 30 days after the state Supreme Court issues a decision. If that happens, advocates said women would be forced to travel hundreds or even thousands of miles to access care.
Virginia would be the only state in the South to allow abortion beyond the first trimester.
Both Florida’s current 15-week ban and the six-week ban contain some exceptions, including for life of the mother and certain “fetal anomalies.”
The six-week ban includes exceptions for rape and incest, and would also provide $25 million in state funding every year for crisis pregnancy centers, which aim to dissuade people from getting abortions.
White, the attorney for the abortion providers, argued the abortion ban puts the health and lives of pregnant Floridians at risk.
“Despite their best efforts, providers are finding their hands tied by [the law],” White said.
In some cases, it’s forcing providers to wait for patients who are experiencing otherwise treatable medical pregnancy complications to instead deteriorate to the point of developing life-threatening conditions like sepsis before they can intervene.
“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,” White said.
After the hearing, White told reporters a ruling in favor of the state could have repercussions beyond abortion law.
“If the Court were to agree with the state, it would be not just overruling precedents related to abortion, but numerous other precedents that hold that the privacy clause gives broad and strong protections … to the ability of all of us to make deeply personal decisions for ourselves, about our lives, our families and our health.”
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