The state is in a court battle over its new law that bans most abortions after 15 weeks. On The Florida Roundup, host Tom Hudson hosts a discussion about the law, which will likely be decided by the Florida Supreme Court. Click the Listen button above to hear the program.
It has been more than a week since the U.S. Supreme Court overturned Roe v. Wade, which gave federal protection for abortions, and left the issue to be decided by individual states.
A Leon County Judge John Cooper cited privacy protections in Florida’s constitution in granting to protect abortion access in the state. His temporary injunction, which took effect Tuesday, was the result of a challenge to a new law that changed the state's abortion restriction from 24 to 15 weeks.
The state is expected to appeal that ruling, and plantilffs said they will seek a stay of the freeze.
Ultimately, the fate of the law could rest with the Florida Supreme Court, which historically has turned back most efforts to restrict abortion. That’s because Section 23 of the state constitution guarantees residents a right to privacy, which has been interpreted by the state’s high court to include the right to an abortion.
Former Chief Justice Charles Wells has said previous court decisions "leave no doubt that the right to privacy includes abortion in Florida."
However, since 2019 the court has become far more conservative, with four appointees by Republican Gov. Ron DeSantis likely to be on the seven-member panel later this year.
With or without a 15-week ban, Florida has one of the most permissive abortion laws among states in the Southeast, especially compared to neighbors Georgia and Alabama.
"We are open," said Kelly Flynn, CEO of A Woman’s Choice of Jacksonville. She said the clinic canceled abortions as the 15-week ban took effect.
We are working on transportation for patients later than 15 weeks to go to our clinics in North Carolina," she said. "They are having to pick up their entire family in some sense and drive a great distance to be able to have this procedure done."
Cooper written opinion is expected this week.
"Anybody who would need to get an abortion after 15 weeks will no longer be able to under this law as long as this law is in effect," said Kara Gross, legislative director and senior policy counsel of the American Civil Liberties Union of Florida, one of the plaintiffs that sued the state over the law.
The majority of abortions in Florida are performed before 15 weeks and are done with prescription medicine, not a surgical procedure, according to state data.
Flynn called days after the Roe decision "confusing and very scary" for patients.
"There's so many people that call in and are questioning if we're still open. 'Is abortion still legal?' " she said. "We're emphasizing that we are open, and we are going to do our best to provide the best possible care and access that we can."
That privacy clause was added to Florida's consitution in 1980 through an amendment approved by voters. However, the language does not mention abortion. In 1989, the Florida Supreme Court ruled the section applied to the right to an abortion.
"It is very broad," Gross said of the privacy section in the state constitution. "It is a very broad and very expansive and very protective right to privacy that not only includes abortion, but includes all governmental intrusion into a person's private life."
John Stemberger with Florida Family Policy Council argued in an opinion column published in the Tallahassee Democrat that the amendment was not intended to be applied to abortion. He wrote that it was directed at what he calls “informational privacy."
Attorneys representing the state have already argued that the prior decisions by the Florida Supreme Court granting broad privacy protections to abortion, which were cited by Cooper in his ruling, were in error.
They also argued in court the 15-week ban protects the lives of mothers-to-be by not experiencing risks of an abortion later in their pregnancy.
However, a 2012 amendment would have added additional language to the privacy clause that the state constitution "may not be interpreted to create broader rights to an abortion than those contained in the United States Constitution." However, 55% of Florida voters rejected the effort.
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