Abortion providers try to slow rush toward FL Supreme Court hearing on abortion

No guarantee court would respect its abortion-rights precedents

By: - July 11, 2022 3:52 pm

The Florida Supreme Court building. Credit: Colin Hackley

Lawyers for abortion providers filed an objection Monday to the state’s request to move legal arguments over HB 5, Florida’s 15-week abortion ban, directly to the Florida Supreme Court, writing that they preferred to go through the regular appellate process.

A legal team from the Office of Attorney General last week asked the Florida First District Court of Appeal, an intermediate appellate court, to send the case directly to the high court, citing an urgent need to determine the constitutionality of the ban.

However, attorneys from the American Civil Liberties Union, ACLU of Florida, Center for Reproductive Rights, Planned Parenthood Federation of America, and the Jenner & Block law firm, representing Planned Parenthood and other providers, argued it would be a mistake to short-circuit the usual appeals process.

Florida Supreme Court. Bottom row (l-r): Justice Charles T. Canady, Chief Justice Carlos G. Muñiz, Justice Ricky Polston. Top row (l-r): Justice John D. Couriel, Justice Jorge Labarga, Justice Alan Lawson, Justice Jamie R. Grosshans. Credit: Supreme Court

“HB5 is undoubtedly unconstitutional under binding Florida Supreme Court precedent. Nothing in Dobbs v. Jackson Women’s Health Organization changes that settled law, creates uncertainty, or justifies leapfrogging over this court to seek immediate Florida Supreme Court review of the trial court’s nonfinal injunction order, all while litigation toward final judgment continues. There is no support for the state’s extraordinary request, and the court should deny it,” they wrote in a 13-page brief.

They referred to the U.S. Supreme Court June 24 ruling overturning the 1973 precedent in Roe v. Wade declaring a constitutional right to obtain an abortion. The Florida Legislature approved HB 5 earlier this year in anticipation that the Trump-appointed supermajority of justices would overturn Roe. Gov. Ron DeSantis signed the bill into law.

Cooper’s ruling

Circuit Judge John Cooper. Source: Screenshot/Florida Channel

Circuit Judge John Cooper in Leon County ruled on July 5 that the law violates the privacy clause in the Florida Constitution, which the state Supreme Court in 1989 ruled protects the right to abortion, even for minors. He issued a temporary restraining order. The question before the courts now is whether the injunction was justified.

When the case does wind up before the Florida Supreme Court, there’s no guarantee the court would respect the precedents — seeded with Federalist Society-groomed justices, the court has already overruled a number of its own precedents, including in criminal cases.

The state argued in its brief last week that the Dobbs ruling undermined the Florida case law, but the providers’ lawyers insisted it had not. The Florida clause “has no analogue in the federal Constitution and therefore is entirely unaffected by Dobbs,” they wrote.

The U.S. Supreme Court, in a majority opinion by Justice Samuel Alito, argued its ruling merely returned the question to the states to be settled via the democratic process.

“That process has already occurred, and it affirmed Floridians’ commitment to abortion rights,” the providers’ brief argues.

“Floridians first embraced broad protections for privacy, including abortion, by adopting the Privacy Clause in 1980. And in 2012, voters rejected a ballot amendment that would have overruled existing precedent and reduced the Florida-law abortion right to whatever right existed under federal law.”

The merits

They added that the Florida Constitution prescribes that district courts, like the First District Court of Appeal, decide the constitutionality of challenged statutes before the state Supreme Court gets a crack at them.

“The state cites no authority to show that a hope of overturning decades of Florida Supreme Court precedent justifies disregarding this normal appellate progression,” they wrote.

Additionally, the providers argue that the case has yet to be argued on its merits — Judge Cooper, in ordering his injunction, ruled merely that the plaintiffs were likely to prevail on the merits.

“More importantly, the state cannot show the Supreme Court will be unable to review this matter in the ordinary course. This court should follow the traditional appellate process, as the Florida Supreme Court prefers to resolve cases after one or more of the district courts have first provided legal analysis in a published opinion.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.