Justices hear high-stakes abortion case

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

By Dara Kam ©2023 The News Service of Florida

TALLAHASSEE — In a case that could have a dramatic impact on women’s reproductive rights, the Florida Supreme Court on Friday heard arguments in a constitutional challenge to a 2022 state law that prevented abortions after 15 weeks of pregnancy.

The court’s ruling in the case, which could take months, also will affect a law passed this year that would bar abortions after six weeks of pregnancy.

Much of Friday’s arguments centered on whether justices should overturn decades of legal precedent that said a privacy clause in the state Constitution protects abortion rights.

Plaintiffs in the lawsuit include seven abortion clinics and a doctor who performs abortions. An attorney for the plaintiffs, Whitney Leigh White, argued Friday that the 2022 law (HB 5) violates “fundamental rights” and subjects women to “serious and unnecessary risks to their health” by forcing them to give birth.

Florida’s privacy clause protects “the autonomy of the intimacies of personal identity” and “a physical and psychological zone within which an individual has the right to be free from intrusion or coercion … by government,” White said.

Justices grilled White about whether the privacy clause should apply to abortion.

“Why does it (the privacy clause) not connote a negative implication? It’s the right to be let alone,” Justice Meredith Sasso asked. “How does that square … with the right to procure something?”

“The privacy clause refers to a right to be left alone and free from government interference into a person’s private life, and private life is not just private information, but private activities and private decisions,” said White, an attorney for the American Civil Liberties Union Foundation. “There’s no basis to exclude a decision as deeply personal and private as the decision whether to continue a pregnancy from otherwise broad protections for freedom from interference in private life.”

But Chief Justice Carlos Muniz — who at one point during Friday’s arguments said that the U.S. Supreme Court’s 1973 Roe v. Wade decision “might have been an abomination” and referred to fetuses as “human beings” — appeared unconvinced.

“You are 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 from doing that,” he told White.

“First, I think I want to underscore that what would in fact be unique here is allowing HB 5 to stand because there is no other context in which this court has held that the state can constitutionally force an individual to take on increased and serious medical risks and harm for the purported benefit of others. But that is precisely what HB 5 forces pregnant women to do,” White responded.

But state Solicitor General Henry Whitaker said the privacy clause “does not establish a right to abortion.”

Whitaker urged justices to defer to lawmakers on the issue. The state “has a compelling interest in all stages of pregnancy of preserving life,” Whitaker said.

“The plaintiffs have raised substantial concerns about women who need to have abortions, suffer barriers from getting abortions, and other terrible things. The Legislature weighed and balanced those concerns against the interest in preserving life. That kind of weighing and balancing is precisely the kind of thing that should be done by the Legislature, and not this court,” Whitaker argued.

The Republican-controlled Legislature passed the 15-week abortion restriction shortly before a 2022 U.S. Supreme Court ruling that overturned Roe v. Wade. That ruling let states decide on abortion laws.

Most abortion-rights supporters are bracing for a loss at the conservative Florida court, which includes five justices appointed by Gov. Ron DeSantis. The court during the past four years has reversed legal precedents in other cases.

“There is no doubt where the leanings of this court is, but I do believe that the legal arguments are there to uphold the special privacy protection that we have always had, here in the state of Florida,” Senate Minority Leader Lauren Book, D-Davie, told reporters after Friday’s arguments.

Republican Attorney General Ashley Moody, who attended the arguments, told reporters she supports the law.

“I happen to believe, very passionately, that life needs to be protected and that lawmakers should have the ability to do that,” she said.

If the court upholds the 15-week law, the decision would trigger the 2023 law restricting abortions after six weeks of pregnancy. That law would go into effect 30 days after such a court ruling.

White said the “harms” to women would be exacerbated if the Supreme Court does not strike down the 2022 law and the six-week ban goes into effect.

“I think there’s no overstating how high the stakes are here, both for pregnant Floridians and frankly for all Floridians’ constitutional rights,” she told reporters after Friday’s arguments.

The abortion clinics and physician Shelly Hsiao-Ying Tien filed the lawsuit in June 2022, after DeSantis signed the 15-week limit into law.

Leon County Circuit Judge John Cooper agreed with the plaintiffs that the law violated the state Constitution and issued a temporary injunction. But a panel of the 1st District Court of Appeal overturned the injunction, ruling that the plaintiffs could not show “irreparable harm” from the 15-week limit.

The appeals court’s decision allowed the 15-week limit to take effect, and the Supreme Court in January rejected plaintiffs’ request to reinstate the injunction.

Abortion-rights supporters, meanwhile, are trying to get a proposed constitutional amendment on the 2024 ballot. The proposal would bar laws that restrict abortion “before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.”

The Floridians for Protecting Freedom political committee announced the ballot initiative in May after lawmakers and DeSantis approved the six-week limit. The committee appears to have enough valid petition signatures to trigger a crucial Florida Supreme Court review of the initiative’s wording.

The Supreme Court would review the proposal to make sure it includes only a single subject and would not mislead voters.

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