Abortion rights protesters gather in front of the Florida Supreme Court on May 3, 2022. Credit: Danielle J. Brown
The Florida Supreme Court fight over the state’s 15-week abortion ban has attracted a dizzying number of interventions from outside parties who want a say in a case whose outcome will reverberate throughout the country.
These parties include religious groups both opposing and favoring access to abortion. Medical and social-justice groups, too, plus 19 states that already have restricted abortion access. The Florida Legislature has filed arguments, too.
In legal practice, these intervenors are known as “amicus curiae,” or “friends of the court.”
Those states are Mississippi, Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Texas, Utah, and West Virginia. Their brief sums up the reason nonparties to a legal dispute want to weigh in: “to aid the court” as it confronts a dispute of great importance.
“Amici have defended the ability of their citizens and elected representatives to decide how to address the hard issue of abortion. Amici have seen the benefits of allowing the people to make those decisions for themselves. And amici have a considered perspective on why a general right of privacy does not support a right to abortion. Amici bring to this brief the benefit of these experiences as the court considers these issues,” it reads.
At issue before the court is whether to overturn an earlier, more liberal, court’s 1989 ruling that the Florida Constitution’s Privacy Clause, added by the voters in 1980, was broad enough to protect access to abortion services.
If that remains the case, the procedure would remain available in Florida notwithstanding the U.S. Supreme Court ruling last summer striking down Roe v. Wade, and HB 5, the 15-week ban, would be a dead letter.
If not — well, legislation pending in Tallahassee that Gov. Ron DeSantis has promised to sign would ban abortions after six weeks’ gestation, or before most people know they’re pregnant. That legislation contains language making it contingent on a ruling favorable to the anti-abortion forces. Its passage also would eliminate Florida as a haven for patients escaping more restrictive abortion laws in neighboring states through 15 weeks.
Anti-abortion groups contributing briefs include Concerned Women for America, Susan B. Anthony Pro-Life America, the Frederick Douglass Foundation, The National Hispanic Christian Leadership Conference, Fiona Jackson Center for Pregnancy, and the Issues4life Foundation. That brief expresses “a strong interest in exposing the racist and eugenic history of the abortion movement, which has had catastrophic effects on their communities.”
Also contributing are the Florida Conference of Catholic Bishops, Florida Baptist Convention, American Cornerstone Institute, Charlotte Lozier Institute, American College of Pediatricians, National Institute of Family and Life Advocates, the American Association of Pro-Life Obstetricians and Gynecologists, Prolife Center at the University of St. Thomas (Minnesota), and Liberty Counsel Action.
Abortion rights groups
Arguing for abortion rights are Sanctuary for Families, which provides care for domestic-abuse sufferers, Floridians for Reproductive Freedom, Latinojustice, Florida Access Network, the National Latina Institute for Reproductive Justice, and Esperanza United. They contributed a brief that includes as a party a woman identified at “A.L.,” “who was directly harmed by HB 5. Unable to obtain an abortion in Florida because of HB 5, A.L. was forced to travel out-of-state, at substantial personal and financial cost, to end her pregnancy.”
“More than 1 million Latina Floridians of childbearing age will likely be severely impacted by HB 5. Many of them are low-income women whose voices and experiences are often unheard. This makes the movants’ brief particularly unique and necessary for the court’s consideration,” the brief notes.
The American College of Obstetricians and Gynecologists, American Medical Association, and Society for Maternal-Fetal Medicine argue in their brief that the law is “fundamentally at odds with the provision of safe and essential health care, scientific evidence, and medical ethics.”
“Contrary to the assertions made by the Florida Legislature and the state below, there is no medical or scientific justification for House Bill 5,” the brief reads. “Instead, the ban threatens the health of pregnant patients by arbitrarily barring their access to a safe and essential component of health care.”
Furthermore, “The ban will disproportionality impact people of color, those living in rural areas, and those with limited economic resources. This is because, as a general matter, 75% of those seeking abortion are living at or below 200% of the federal poverty level, and the majority of patients seeking abortions identify as Black, Hispanic, Asian, or Pacific Islander. Similarly, traveling out of state for medical care is more difficult, if not impossible, for patients with limited means or living in remote areas.”
Former and serving officials
One brief in favor of the plaintiffs, abortion providers including Planned Parenthood, comes from 62 serving and former state, local, and national office holders, including former Gov. Charlie Crist and U.S. Rep. Frederica Wilson.
Another brief comes courtesy of an array of liberal religious organizations including the National Council of Jewish Women, the Religious Coalition for Reproductive Choice, Catholics for Choice, Metropolitan Community Churches, Muslim Women’s Organization, and Hindus for Human Rights.
“HB 5 imposes a particular view on the beginning of human life and the propriety of terminating a pregnancy on all women in Florida,” their brief says.
“HB 5 prohibits those women from following the tenets of their faith when faced with a pregnancy they cannot or believe they should not carry to term. It puts physicians at risk of criminal penalties for providing care that is consistent with their patients’ religious beliefs. Moreover, it bars religious leaders from advising congregants of religious teachings that would permit, or even require, abortion in certain circumstances,” the brief adds.
Also in the pile are a group calling itself Scholars on Original Meaning in State Constitutional Law, consisting predominantly of law professors at the Ave Maria School of Law, which is affiliated with the Roman Catholic Church.
This brief argues for a textualist approach to the case; that is, reading the Privacy Clause’s words as written in 1980 without looking at things like the intent of the drafters.
The clause reads: “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.”
“[A]ll the key parts of this language — ‘let alone,’ ‘intrusion,’ and ‘private life’ — are well-worn terms derived from the information-based tort of privacy,” the brief says. In other words, the language doesn’t speak to a substantive right to abortion.
The brief also argues against drawing inferences from the defeat by the voters of Amendment 6 in 2012 (which would have banned spending tax dollars on abortions or establishing protection for the procedure broader than was provided by Roe). It also notes that Amendment 6 failed 32 years after adoption of the Privacy Clause and therefore can shed no light on what that clause requires.
Neither does voter adoption of an amendment in 2004 acknowledging Roe but stipulating that it would not violate minors’ privacy rights to require parental notification before obtaining an abortion. “Notification to parents is about a minor’s literal privacy, i.e., information about a minor’s private life, not autonomy in decision-making,” the brief says.
What the states argue
The states’ brief argues that the U.S. Supreme Court, in overturning Roe in Dobbs v. Jackson Women’s Health Organization, intended for legislatures to make abortion law, but that in some states the courts have ruled in favor of access to the procedure. The document doesn’t mention this, but these tend to rely on privacy clauses in their state constitutions.
“This raises serious problems. It imposes on the people a regime that they never embraced, puts courts at the center of a political and moral issue that they can never resolve, and undermines our democratic tradition. It replicates at the state level the problems that Dobbs recently dispensed with at the federal level,” the states argue.
“Some years ago, this court [the Florida Supreme Court] took that path by declaring that the State Constitution’s general right of privacy protects a right to abortion. In this case, the court has the chance to plot a new course. As the U.S. Supreme Court had in Dobbs, this court has the opportunity to honor the people and their elected representatives, to respect their considered decisions, and — in so doing — to embrace the best in our constitutional tradition,” they add.
As for its legal arguments, the brief raises three main points:
“First, a general right of privacy — like that protected by the Privacy Clause — does not provide a sound basis for a right to abortion.
“Second, only the people and their elected representatives — not a court applying a general right of privacy — can workably answer the hard questions that abortion presents.
“Third, judicially construing a general privacy right to protect a right to abortion undermines the democratic process. These points support rejecting relief against HB 5 — a considered effort by the people’s elected representatives to address the important interests that abortion raises.”
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