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State challenges a key privacy clause in the legal battle over Florida's 15-week abortion ban

Supporters of abortion access march in front of the Florida Capitol Building on Wednesday. Florida's House passed a bill limiting many abortions in the state.
Mark Wallheiser
Getty Images
Supporters of abortion access march in front of the Florida Capitol Building this year.

Attorney General Ashley Moody’s office said it thinks the Florida Supreme Court should reverse a decades-old position that a privacy clause in the state constitution protects abortion rights.

Attorney General Ashley Moody’s office said it thinks the Florida Supreme Court should reverse a decades-old position that a privacy clause in the state Constitution protects abortion rights.

Lawyers in Moody’s office addressed the issue in a 44-page document arguing that the Supreme Court should reject an effort by abortion clinics and a doctor to block a new law that prevents abortions after 15 weeks of pregnancy.

The privacy clause has played a crucial role in bolstering abortion rights in Florida since a 1989 Supreme Court ruling. Abortion opponents have long argued that the clause was not meant to protect abortion rights — a position that Moody’s office took in Tuesday’s filing.

The filing, late on Tuesday, said the 1989 decision, in a case known as In re: T.W., was wrong “from the start.”

“It ignored that the (constitutional) provision’s plain text says nothing of abortion, that its drafters publicly disavowed guaranteeing abortion rights and that the provision was ratified in response to decisions restricting informational privacy,” said the document, filed by state Solicitor General Henry Whitaker and other lawyers in Moody’s office.

“Were this (Supreme) Court to address the meaning of the Privacy Clause here, it should therefore recede from its precedents and clarify that the original meaning of the clause has nothing to say about abortion— and certainly that the Privacy Clause is not so clear as to pry the abortion debate from the hands of voters.”

At another point in the document, Moody’s office expressed confidence that the court “is likely to hold that the Privacy Clause of the Florida Constitution does not limit the Legislature from regulating abortion.”

Such a ruling would be a seismic legal shift about abortion rights in Florida and would come after the U.S. Supreme Court in June overturned the landmark Roe v. Wade decision.

The Florida Supreme Court has become significantly more conservative since Gov. Ron DeSantis took office in early 2019. Three longtime justices who consistently ruled in favor of abortion rights, Justices Barbara Pariente, R. Fred Lewis and Peggy Quince, left the court in 2019 because of a mandatory retirement age and were replaced by DeSantis appointees. Another DeSantis appointee, Renatha Francis, joined the seven-member court last week.

Tuesday’s filing by Moody’s office came after attorneys for seven abortion clinics and a doctor, Shelly Hsiao-Ying Tien, went to the Supreme Court to try to block the 15-week abortion limit, which DeSantis signed April 14. The law took effect July 1.

The clinics and the doctor filed a lawsuit June 1, and Leon County Circuit Judge John Cooper on July 5 issued a temporary injunction against the law, ruling that it violated the Constitution’s privacy clause. The state immediately appealed, which, under legal rules, placed an automatic stay on Cooper’s ruling — keeping the 15-week limit in effect.

A panel of the 1st District Court of Appeal rejected a request to vacate the stay and later overturned the temporary injunction. Attorneys for the clinics and the doctor asked the Supreme Court to vacate the stay and to reject the appeals court’s decision on the underlying temporary injunction.

The Supreme Court on Wednesday issued a one-sentence order denying the plaintiffs' motion to vacate the stay. But later, it said the order was issued in error and that the stay issue remains "under consideration."

The privacy clause in the Constitution has played a key role in the plaintiffs' arguments to the Supreme Court.

“Vacating the stay will ensure that, while proceedings in this (Supreme) Court continue, Floridians will be able to exercise their constitutional right to decide for themselves whether to have a pre-viability abortion or to carry a pregnancy to term — a right that, for decades, this court has repeatedly recognized the Florida Constitution confers,” the plaintiffs’ attorneys wrote in an Aug. 19 motion to vacate the stay.

As the Supreme Court considers the temporary-injunction issue, it could base a decision on more-narrow legal grounds than addressing the issue of the privacy clause. The appeals-court panel, for example, ruled that the plaintiffs could not show “irreparable harm” from the 15-week limit and, as a result, were not entitled to a temporary injunction.

The plaintiffs’ attorneys have disputed that conclusion at the Supreme Court, while Moody’s office contends the appeals court ruled correctly.
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Jim Saunders is the Executive Editor of The News Service Of Florida.