Clinics appeal to FL Supreme Court’s conservative bent in fighting abortion ban

‘Overwhelming weight of textual and historical evidence’ supports access

By: - March 1, 2023 1:00 am

Abortion rights protesters gather in front of the Florida Supreme Court on May 3, 2022. Credit: Danielle J. Brown

Attorneys for a group of abortion clinics are pleading with the Florida Supreme Court not to overrule decades of precedent protecting access to the procedure under the Florida Constitution, citing the plain text of that document’s Privacy Clause and the danger to millions of Florida women.

Arguments, filed Tuesday on behalf of Planned Parenthood and other clinics plus a doctor who provides abortion care, point to the plain text of the Privacy Clause, which Florida voters adopted in 1980:

“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.”

“Such a broad freedom in private and personal matters necessarily extends to the profound and personal decision whether to have an abortion or to bear the substantial pains, risks, and life-altering consequences of pregnancy and childbirth,” the brief says.

The pleading looks like an attempt to remind the court’s majority of their purported conservative principles — as remade by Gov. Ron DeSantis since first taking office in 2019, the court majority has amply demonstrated willingness to second-guess precedents established by earlier, more moderate or liberal, courts. Like the one that found in 1989 that the Privacy Clause protects abortion rights.

The state will file a reply brief at a later date.

At issue is HB 5, passed last year, which bans abortions beginning 15 weeks following the last menstrual period without exceptions for rape or incest — only to preserve maternal life and health or when the fetus is unlikely to survive.

Leon County Circuit Judge John Cooper struck down the law as violating the Privacy Clause and issued an injunction against its enforcement. However, an intermediate state appellate lifted the injunction, allowing the law’s enforcement as of July 1 last year.

Fact findings

The brief argues that appeals courts are obliged to accept a trial court’s findings of fact in legal disputes, because the trial judge would have vetted the evidence closely and assessed the personal credibility of witnesses.

Here, Judge Cooper found that the Legislature’s arguments for banning abortion after 15 weeks were all wrong, the brief continues: for example, the law does not prevent fetal pain because fetuses feel pain only around the viability stage, and that the ban actively threatens maternal health because pregnancy is so much more dangerous than undergoing abortion — both factors supported by overwhelming medical evidence.

Yet the First District Court of appeal ignored those findings, the brief argues. It also ignored extensive precedent allowing the clinics to pursue claims on behalf of their patients, who might not have the means or time to file lawsuits on their own behalf.

Furthermore, the state can legitimately override that conclusion only when the text’s explicit language says it can, the clinics’ team wrote — and “[t]here is no basis in the text of the Privacy Clause to artificially constrain its broad, ordinary meaning to exclude a right to decide whether to terminate a pregnancy.”

The language seems aimed at countering arguments raised by the state earlier in the litigation that the amendment was intended to protect mainly data privacy.

The privacy amendment was a direct response to Florida Supreme Court rulings before 1980 holding that — notwithstanding the U.S. Supreme Court ruling in Roe v. Wade — the Florida Constitution did not establish a privacy right to abortion. “The historical context reflects that the 1980 amendment was intended to remedy these omissions,” the brief says.

Now the U.S. Supreme Court has overturned Roe, but there’s ample legal authority for allowing states to enforce rights independent of federal law, it says, even if federal protection recedes.

“Furthermore, widespread local news coverage in 1980 linked Florida’s privacy amendment to broad privacy rights and privacy rights to abortion,” the brief argues.

“For example, contemporaneous news coverage routinely identified the proposed amendment as creating a broad privacy right under Florida law that (at minimum) incorporated the constellation of privacy rights then-recognized under federal law, and routinely identified abortion as part of federal privacy rights,” it continues.

“The overwhelming weight of textual and historical evidence counsels strongly in favor of upholding established case law uniformly concluding that Florida’s fundamental right to privacy protects abortion rights,” it reads.

The plaintiffs’ attorneys then threw the words of the Justice Antonin Scalia, one of the original originalists, at the Florida justices: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

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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.