What’s next on the abortion front in FL? A legal showdown

By: - February 21, 2020 7:00 am

The Florida Supreme Court building. Credit: Colin Hackley

When the Florida Legislature decided that teens seeking an abortion must have parent permission – not just notification –the stage was set for a legal showdown.

Gov. Ron DeSantis had already said he’d sign the parental-consent bill that requires minors under 18 to have permission from at least one parent or a legal guardian before they terminate a pregnancy.

Florida would now be among a handful of states requiring both notification and consent for a minor to get an abortion.

But the ultimate decision on whether the parental-consent law stands will not take place in the 22-story state Capitol. It will happen across South Duval Street at the Florida Supreme Court.

Opponents of the law, including Planned Parenthood and the American Civil Liberties Union of Florida, contend the law is unconstitutional because it violates a unique privacy provision put into the Florida Constitution by voters in 1980.

“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life,” the provision says.

The state’s highest court used the privacy clause to strike down a similar parental-consent law in 1989.

“Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy,” the court said in its ruling.

But that 31-year-old legal precedent is now threatened by a series of political events that have created a dominant conservative majority on the Florida Supreme Court.

A changing Supreme Court

In fact, DeSantis, a Harvard-trained lawyer who adheres to a conservative legal philosophy, is set to appoint two new members to the court, preserving a 6-1 conservative majority on the panel.

DeSantis said Thursday that Florida’s lack of a parental-consent law makes the state an “outlier.”

“I think it does deserve to be reconsidered,” DeSantis said about the Supreme Court’s prior ruling that found the 1988 parental-consent law to be unconstitutional.

“I think that parents, regardless of their opinions on the underlying issue, I think they want to be involved with what’s going on with their kids,” DeSantis said.

Sen. Gary Farmer, a Broward County Democrat and trial lawyer who opposed the parental-consent bill, said the Florida Supreme Court should “absolutely” be guided by the legal precedent it set in its prior ruling on the abortion law.

He said it comes down to a legal doctrine known as “stare decisis,” a Latin phrase translated as “to stand by things decided.”

Red meat for Trump voters?

“Now the question is will this court follow the principle of stare decisis and a long line of constitutional interpretations and opinions and reach that conclusion?” Farmer told the Florida Phoenix. “Or is this just about red meat for Trump voters?”

Supporters of the parental-consent law only have to look to a recent Supreme Court decision on the death penalty to surmise the new conservative-majority court is more than willing to reverse precedent set by the prior court.

In that case, the court reversed a 2016 decision that required unanimous jury decisions in order to impose the death penalty.

“It is no small matter for one court to conclude that a predecessor court has clearly erred,” the court said. But the majority opinion added “in this case we cannot escape the conclusion that (the prior court) …got it wrong.”

Farmer said that ruling may not bode well for a future decision on the abortion law.

“Their track record thus far on stare decisis hasn’t been great,” Farmer said about the justices.

Farmer said, based on prior court decisions, the way to allow parental involvement in cases where a minor is seeking to terminate a pregnancy would be to amend the state Constitution, explicitly allowing it.

He noted that happened in 2004, after the court, using the privacy precedent, rejected a law requiring parents be notified if their teenage daughter was seeking an abortion.

Following that ruling, the Legislature put a constitutional amendment on the 2004 ballot that was approved by nearly 65 percent of the voters.

A subsequent parental-notification law, passed in 2005, has been in effect since then.

A new bill on parental consent

Sen. Kelli Stargel, the Lakeland Republican who sponsored the Senate version of the parental-consent legislation, said the new measure — also approved by the House — considers some of the objections raised by the prior court rulings.

For instance, the law will require a minor seeking court approval to waive the parental-consent requirement to have access to an attorney at no cost.

“I do feel if it goes to court, that it’s different than what was passed years ago that was deemed unconstitutional,” Stargel told the Florida Phoenix. “We fixed the deficiencies that the court pointed out.”

Stargel said she does agree with supporters of the parental-consent law that the state Supreme Court’s 1989 ruling went too far in its interpretation of the privacy provision.

“I think the facts support people who believe that it was an overreach back then,” she said.

Supporters of reproductive rights for women argue that adoption of the parental-consent law and its potential to be upheld by a revamped state Supreme Court could lead even further restrictions on abortion in Florida.

A 2015 law requiring women wait 24 hours before having an abortion was struck down by a trial judge, who cited the constitutional privacy provision.

But last year that ruling was overturned by the 1st District Court of Appeal, a Tallahassee-based court that is also dominated by conservative judges.

The 24-hour waiting period law, which is now awaiting a new trial, could be revived if the Supreme Court offers a revised interpretation of the state’s privacy clause.

“Despite what sponsors of (the parent-consent legislation) have said, this bill is not about ensuring parental advice or guidance. It is about politicians creating a system where minors will be forced to have children against their will and stripping young people of their constitutionally protected right to end an unintended pregnancy,” Kara Gross, the legislative director for the ACLU of Florida, said earlier this month.

“Let’s be very clear,” she said in a statement. “This bill is not about protecting minors, it’s about banning access to safe and legal abortion, just as our southern neighboring states have done.”

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Lloyd Dunkelberger
Lloyd Dunkelberger

Lloyd Dunkelberger has been covering Florida government for over three decades. He’s reported and edited in Tallahassee for the New York Times Regional Newspapers group, Florida Politics, and the News Service of Florida. He grew up in Jacksonville and Palm Beach County and got his journalism degree at the University of Florida.