Fl Supreme Court issues, then retracts, order on anti-abortion law; what’s going on?

Dueling orders come as AG seeks reversal of 1989 abortion-rights ruling under the privacy clause of the FL Constitution

By: - September 8, 2022 12:32 pm

Demonstrators march towards Florida Supreme Court during protests over abortion bans. May 14, 2022. Credit: Diane Rado

The Florida Supreme Court issued an order rejecting a request by abortion providers to block enforcement of the state’s 15-week abortion ban — and then withdrew it, blaming an error by the court’s clerk’s office in releasing the order.

The episode recalled the leak in May of a draft U.S. Supreme Court opinion in Dobbs v. Jackson Women’s Health, which, when formally released in June, overturned the Roe v. Wade precedent that granted the right to obtain an abortion.

Particularly since, because of conservative appointments by Gov. Ron DeSantis, the state high court has shown a distinct willingness to overturn its own precedents.

The first order read: “Petitioners’ Emergency Motion to Vacate Automatic Stay of Temporary Injunction is hereby denied.”

The second order read: “The order of this court dated Sept. 7, 2022, denying Petitioners’ Emergency Motion to Vacate Automatic Stay of Temporary Injunction is hereby vacated as it was issued in error by the clerk’s office. The motion remains under consideration by the court.”

Now the copy of the first order viewable on the court’s website has been stamped with the word “vacated” in big letters.

Court spokesman Paul Flemming blamed “a human error by staff. The order vacating was filed and publicly distributed when the error was recognized,” he wrote in an email to the Phoenix.

The ACLU of Florida, which with the Center for Reproductive Rights, Planned Parenthood Federation of America, and the Jenner & Block law firm is seeking to overturn the abortion restrictions, hasn’t responded to a request for comment.

Bob Jarvis, a professor of constitutional law at Nova Southeastern University’s Shepard Broad College of Law, called the situation “quite a mess.  But we all know, just as we knew with Dobbs, how the FSC ultimately is going to rule.”

‘Egregiously wrong’

The dueling orders came one day after attorneys working for Attorney General Ashley Moody filed a motion asking the justices to recede from the court’s 1989 ruling in In re T.W., establishing a right to abortion under the privacy clause the voters added to the Florida Constitution through a 1980 referendum.

Quoting Justice Samuel Alito’s Dobbs decision, the motion posits: “that decision was ‘egregiously wrong’ from the start.” Alito referred to the Roe ruling.

“It ignored that the provision’s plain text says nothing of abortion, that its drafters publicly disavowed guaranteeing abortion rights, and that the provision was ratified in response to decisions restricting informational privacy,” the A.G.’s office wrote of In re T.W.

“Were this court to address the meaning of the privacy clause here, it should therefore recede from its precedents and clarify that the original meaning of the clause has nothing to say about abortion — and certainly that the privacy clause is not so clear as to pry the abortion debate from the hands of voters,” they added.

The motion also cites procedural problems with taking the case away from the Florida First District Court of Appeal, which has ruled that the Planned Parenthood affiliates and an ob-gyn attacking the abortion law lacked standing to bring the case on behalf of their patients.

The abortion providers, however, had cited considerable legal precedents allowing clinics to sue on behalf of their patients plus the “irreparable harm” that leaving the law in place is doing to patients who need abortions after 15 weeks’ gestation because of late-emerging medical dangers. Those include forced pregnancy and having to travel out of state for the procedure.

Florida’s HB 5

The Legislature passed HB 5, the abortion law, in March in (as it turned out justified) expectation that the U.S. Supreme Court would overturn Roe. It bans abortion after 15 weeks unless necessary to protect the health of the pregnant person or in case of fatal fetal abnormality, as attested to by two doctors, but provides no exceptions for rape or incest.

On July 5, four days after the law took effect, Circuit Judge John Cooper of Leon County issued an order blocking enforcement of the law, citing In re T.W. However, the First District court allowed a stay of Cooper’s order to remain in effect, meaning the state could continue to enforce it.

Separate challenges mounted by Christian, Jewish, and Buddhist clergy contend the law amounts to imposition of religious-based theories about the propriety of abortion that not all religions share.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

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. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

MORE FROM AUTHOR