The fate of abortion rights in Florida will be at stake Friday morning when the state Supreme Court is expected to take up a challenge to a law banning the procedure in most cases after 15 weeks of pregnancy, which will determine whether an even stricter six-week ban can take effect.
The seven justices — including five conservatives appointed by Gov. Ron DeSantis, a GOP candidate for president — are set to hear oral arguments in Tallahassee in the lawsuit brought by Planned Parenthood, the American Civil Liberties Union and others.
They claim the Florida Constitution's privacy clause for more than 40 years has explicitly protected a right to abortion in the state.
“Plain text and historical context place beyond doubt that Florida’s Privacy Clause protects against governmental interference in all aspects of a person’s private life, including decisions about pregnancy,” the plaintiffs say in court papers.
Florida officials contend the Supreme Court has in the past erroneously concluded the privacy clause covers abortion rights when it was actually intended more as a guard for “informational privacy, like the disclosure of private facts."
The privacy clause does not extend “beyond informational privacy and personal decisions that do not harm others to a right to destroy unborn life,” the officials claim.
The lawsuit seeks an injunction blocking enforcement of the 15-week abortion ban known as HB5, a 2022 law that 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.
The six-week ban DeSantis signed into law this year would take effect 30 days after a court decision to affirm the current ban.
The privacy clause was put into the constitution by referendum in 1980 and later affirmed as including abortion rights by the state Supreme Court. Voters rejected a proposed amendment in 2012 that would have undone those decisions.
Last year's U.S. Supreme Court decision known as Dobbs overturned the Roe vs. Wade ruling that protects a right to an abortion and allows states to determine their own abortion rights policies. However,, plaintiffs contend, it does not undermine the Florida privacy protections.
“To the contrary, the Dobbs opinion expressly recognized that states remain free to protect abortion under state law,” they say in court papers.
Florida's position is backed by a variety of anti-abortion groups and at least 19 Republican-led states that have filed “friend of the court” briefs claiming, in part, that state legislatures should decide the issue rather than courts.
"It imposes on the people a regime that they never embraced, puts courts at the center of a political and moral issue that they can never resolve, and undermines our democratic tradition,” the states say in the brief.
The challengers also have a number of groups filing briefs on their behalf, including the American College of Obstetricians and Gynecologists, the American Medical Association and Floridians for Reproductive Freedom.
The text of Florida's privacy clause reads: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”
The 15-week ban before the court 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 six-week ban measure was sponsored in the Legislature by GOP Rep. Jennifer Canady, wife of Supreme Court Justice Charles Canady. He has made no move to recuse himself because of the relationship and no motions have been filed requesting recusal.
As a congressman in the 1990s, Charles Canady sponsored bills to ban so-called “partial-birth abortion.”
A Leon County judge earlier this year agreed the 15-week ban violates the Florida Constitution and blocked its enforcement with a temporary injunction. An appeals court overturned the injunction, bringing the case before the state Supreme Court.
Several groups also are gathering petition signatures in an effort to place a proposed constitutional amendment on the 2024 ballot to guarantee abortion rights in Florida up to about 24 weeks of pregnancy, generally when a fetus is considered viable.
