If the 15-week ban remains on the books, an even stricter six-week ban passed by the Republican-led Legislature this year and signed by DeSantis would automatically take effect about a month after the court renders a decision.
The seven justices — including five conservatives appointed by DeSantis, a GOP candidate for president — heard oral arguments in Tallahassee in the lawsuit brought by Planned Parenthood, the American Civil Liberties Union and others. They claim the Florida Constitution’s unique privacy clause for more than 40 years has explicitly protected a right to abortion in the state and should remain in force.
“Abortion has been a recognized right in Florida for decades,” said Whitney White, an ACLU staff attorney. “There’s no basis in the text to exclude a decision so personal and so private as whether to continue a pregnancy.”
Lawyers for the state, however, contend that when the privacy clause was adopted by voter referendum in 1980, few people understood it would cover abortion. State Solicitor General Henry Whitaker told the justices the clause was mainly meant to cover “informational privacy” such as personal records and not abortion.
“An act of the Legislature should not be struck down unless it is clearly unconstitutional,” Whitaker said of the new abortion bans enacted by lawmakers. “We think the state has a compelling interest in all stages of pregnancy in preserving life.”
Several justices questioned whether the court should give deference to the Legislature on abortion, particularly since the word does not appear specifically in the privacy clause and debate at the time it was enacted is inconclusive. Chief Justice Carlos Muniz asked if the U.S. Supreme Court’s invalidation of the Roe vs. Wade standard in the Dobbs ruling had any impact on the Florida case.
“Should we take that into account? Should it matter to us that the entire foundation of the asserted right here that the (U.S.) Supreme Court has now said was egregiously wrong?” Muniz asked White.
“Nothing in the Dobbs decision displaces state protections for abortion that were more protective than federal law,” she replied. “States are free to afford that level of protection. That’s precisely what Floridians have done here.”
The justices did not indicate when they would rule. Cases of this magnitude often take months to decide.
The lawsuit seeks an injunction blocking enforcement of the 15-week abortion ban known as HB5, which 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 privacy clause was put into the Florida Constitution by a voter referendum in 1980 and later affirmed as including abortion rights by the state Supreme Court. Voters rejected a proposed constitutional amendment in 2012 that would have undone those decisions.
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 Friday 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 state 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.”
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.