Florida Supreme Court Issues Divergent Opinions Impacting Abortion Rights in Florida
Alerts
April 2, 2024
On April 1, 2024, the Florida Supreme Court issued two divergent opinions that impact the right to abortion in the State of Florida. In the first, Planned Parenthood of Southwest and Central Florida, et al. vs. The State of Florida, et al., SC No 2022-1050, Planned Parenthood of Southwest and Central Florida (“Florida Planned Parenthood”) sought a temporary injunction challenging the constitutionality of a state law that prohibited abortions if the gestational age of the fetus is more than fifteen weeks (15-week Ban). Florida Planned Parenthood argued that the Florida Constitution guarantees the right to be left alone and free from governmental intrusion into private life (referred to as the “Privacy Clause”) and thus, the 15-week Ban is at odds with the Florida Constitution. The Florida Supreme Court reviewed the history of the Privacy Clause and concluded that there was no historical evidence that, when the Florida legislature enacted the Privacy Clause, it contemplated protecting the right to an abortion through the end of second trimester of pregnancy and therefore, the Florida prohibition against abortion was not in violation of the “Privacy Clause.”
During the pendency of this very case, the Florida legislature further restricted the right to abortion to a six-week window, triggered to go into effect thirty (30) days after a decision by the Florida Supreme Court upholding the constitutionality of the 15-week Ban (called the “6-Week Heartbeat Protection Act”).
On the same day of the above ruling, the Florida Supreme Court issued Supreme Court of Florida No. SC2023-1392 ADVISORY OPINION TO THE ATTORNEY GENERAL RE: LIMITING GOVERNMENT INTERFERENCE WITH ABORTION in response to the Florida Attorney General’s request for an advisory opinion concerning the validity of a proposed citizen initiative amendment to the Florida Constitution. Specifically, the proposed amendment would create a new section in the Declaration of Rights in article I of the Florida Constitution:
SECTION __. Limiting government interference with abortion. Except as provided in Article X, Section 22, no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.
The ballot title for the proposed amendment is “Amendment to Limit Government Interference with Abortion,” and the ballot summary states: “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.
Id.
The Attorney General claimed, among other things, that the ballot summary was misleading because it does not define “viability,” “health,” or “healthcare provider” and does not disclose that it might be left to a “healthcare provider” to determine when a fetus is viable. The Florida Supreme Court did not agree with the Attorney General’s arguments and ruled that the ballot would not be stricken because of opponent arguments that the ballot is ambiguous and said, the issue for the Florida Supreme Court was whether the ballot misleads voters as to the proposed amendment itself based upon the text. The Florida Supreme Court did not find the text of the ballot misleading.
“We conclude that the proposed amendment complies with the single-subject requirement of article XI, section 3 of the Florida Constitution, and that the ballot title and summary comply with section 101.161(1), Florida Statutes. And there is no basis for concluding that the proposed amendment is facially invalid under the United States Constitution. Accordingly, we approve the proposed amendment for placement on the ballot.”
The CEO of Florida Planned Parenthood, Alexandra Mandado, said she is confident that once on the ballot, the proposed amendment with receive the 60% of the vote necessary for passage of a constitutional amendment in Florida.
Takeaway: Every day, another state is engaged in battle regarding abortion rights, all of which creates a very uncertain and uneasy time for women in this country trying to make reproductive health decisions as well as for their providers. In the instant case, once the 6-week Heartbeat Protection Act goes into effect, abortion will essentially be illegal in Florida unless the woman is at risk of death or serious bodily injury. If the Florida constitutional amendment is passed, the battle will undoubtedly continue to wage, making already complex and difficult decisions even more so.
As new developments arise, we will continue to update our Dobbs Decision Resource Center. In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.