An appeals court rejects a Florida minor’s abortion consent waiver request

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Signs at the “Bans Off Our Bodies” rally along the downtown waterfront of St. Petersburg, Florida. By Seán Kinane/WMNF News (24 June 2022).

By Jim Saunders ©2024 The News Service of Florida

TALLAHASSEE — For the second time in less than three weeks, an appeals court Wednesday rejected a minor’s attempt to have an abortion without notifying and getting consent from a parent or guardian.

But the ruling by a three-judge panel of the 1st District Court of Appeal could have broader implications for future requests by minors to receive waivers from a parental notification and consent requirement in state law.

The minor, identified by the pseudonym Jane Doe, went to the appeals court after Leon County Circuit Judge Lance Neff turned down her request for such a waiver. In what appears to be a first-of-its-kind ruling in Florida, the appeals court Wednesday said it did not have legal jurisdiction to decide the case and dismissed it.

The appeals court said the case lacked a necessary “justiciable controversy” because it did not have an “adverse party.” Such an adverse party could have been a parent or guardian of the minor.

“This appeal comes to us with only the minor’s interests presented to the court,” said the ruling, written by Judge Lori Rowe and joined by Judges Thomas Winokur and Brad Thomas. “And without representation of the interests of the parents — the parties whose rights are directly implicated under the parental notification and consent law. Indeed, the appeal comes to us with no appellee (a respondent in an appellate case) at all. Under these circumstances, there is no justiciable controversy for us to adjudicate.”

While he agreed with the ruling, Thomas wrote a concurring opinion that indicated he thinks parents’ rights are being violated.

“Without notice and without an opportunity to be heard, the minor’s parents are deprived of the most fundamental liberty interest recognized in law: the fundamental right to care for and raise their daughter, to advise and counsel her regarding this decision,” Thomas wrote.

The ruling did not provide details about the minor, such as her age, or the reasons that Neff ruled against her. Thomas’ concurring opinion, however, said the minor received assistance from her boyfriend and his mother in seeking to have an abortion without her parents getting notified.

Records and court proceedings in such cases are confidential.

Florida voters in 2004 approved a constitutional amendment that cleared the way for the Legislature to pass a law requiring that parents or guardians be notified before minors have abortions. Lawmakers in 2020 added to that with the consent requirement.

The issue has long been controversial, with supporters of the requirements saying minors are not mature enough to make abortion decisions. But opponents have argued, in part, that some minors could face issues such as abuse if their parents found out they were pregnant.

Lawmakers included a process for minors to go to court and seek waivers of the notice and consent requirements. If circuit judges reject the waivers, the minors can go to appeals courts, under state law.

Such cases reaching appeals courts are relatively rare. But appeals courts have taken up the cases and ruled — including in a Dec. 15 decision by a different panel of the 1st District of Appeal that rejected a waiver request from a Calhoun County minor.

Rowe acknowledged that Wednesday’s ruling departed from how courts have handled the cases in the past.

“We recognize that our court and other district courts have exercised appellate jurisdiction to consider many appeals from circuit court rulings denying judicial waivers …,” Rowe wrote. “Even so, none of Florida’s district courts have addressed in a written opinion our jurisdiction to exercise appellate judicial power in cases arising under the judicial waiver statute or whether such cases present justiciable controversies.”

In the Dec. 15 ruling, a three-judge panel upheld a decision by Calhoun County Circuit Judge Brandon Young, who found the minor in that case “failed to demonstrate sufficient maturity” to receive a waiver of the notification and consent requirement, according to the appeals court. That panel was made up of Judges Rachel Nordby, Robert Long and M. Kemmerly Thomas.

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