Clinics Say Privacy Clause Protects Abortion Rights

By Jim Saunders

The News Service of Florida

TALLAHASSEE — With the future of abortion rights in Florida potentially hinging on the case, attorneys for abortion clinics and a doctor are pushing back against arguments that the state Supreme Court should reject decades of legal precedents about a privacy clause in the Florida Constitution.

The attorneys late Friday filed a 24-page brief urging the Supreme Court to block a 2022 state law that prevented abortions after 15 weeks of pregnancy. But the stakes of the case soared last month when Gov. Ron DeSantis signed a new law that would bar abortions after six weeks.

The six-week limit is contingent on the outcome of the challenge to the 15-week law (HB 5). In the 15-week case, the state contends the Supreme Court should reject more than 30 years of legal precedents and rule that a privacy clause in the Constitution does not protect abortion rights.

The plaintiffs’ attorneys in Friday’s brief wrote that the Supreme Court should stick with the longstanding interpretation that the Constitution protects abortion rights, saying the 15-week limit “openly flouts that protection and decades of this (Supreme) Court’s precedents.”

“Unable to justify HB 5’s extreme ban under existing law, the state instead asks this court to abandon precedent and overrule a fundamental constitutional right that generations of Floridians have relied on,” the brief said. “This radical request — which is unsupported by plain language, history, or law — would defy the will of the people and threaten to upend this court’s privacy jurisprudence well beyond abortion.”

In a March 29 brief, Attorney General Ashley Moody’s office argued that past rulings on abortion rights were “clearly erroneous” and that decisions about abortion restrictions should be left to the Legislature.

“Rather than allow the legislative process to unfold in response to new scientific and medical developments, this (Supreme) Court’s (past) abortion cases have disabled the state from preventing serious harm to women and children and stifled democratic resolution of profoundly important questions touching on the treatment of unborn life, when an unborn child is capable of consciousness and pain, and what medical procedures affecting the procreative process are safe and appropriate to allow,” the state’s brief said.

Seven abortion clinics and physician Shelly Hsiao-Ying Tien filed the lawsuit in June challenging the constitutionality of the 15-week abortion law.

Leon County Circuit Judge John Cooper agreed with the plaintiffs that the law violated the state Constitution and issued a temporary injunction. But a panel of the 1st District Court of Appeal overturned the injunction, ruling that the plaintiffs could not show “irreparable harm” from the 15-week limit.

The appeals court’s decision allowed the 15-week limit to take effect, and the plaintiffs are asking the Supreme Court to reinstate the injunction. Justices in January agreed to take up the case, which also involves arguments about the “irreparable harm” issue, but have not scheduled oral arguments.

Florida voters in 1980 approved a constitutional amendment that established state privacy rights. A 1989 Florida Supreme Court ruling set an initial precedent about the privacy clause protecting abortion rights, and subsequent decisions have followed that precedent.

Abortion opponents, however, have long argued that the privacy clause should not protect abortion rights. And they see an opening for their arguments as the Supreme Court has become far more conservative because of appointments since DeSantis took office in 2019.

Opponents of the six-week abortion limit say it would largely ban abortions in Florida, in part because many women don’t know they are pregnant at six weeks. But the fate of the six-week limit depends on how the Supreme Court rules in the 15-week case.

“Florida’s recent enactment of a more restrictive 6-week ban underscores that the state’s disregard for fundamental rights does not stop with HB 5,” Friday’s brief said. “To preserve the rule of law and Floridians’ constitutional rights, (the plaintiffs) request that this court uphold precedent, reverse the appellate court and reinstate the injunction barring enforcement of HB 5.”

But in the March 29 brief, Wednesday, the state’s attorneys went into extensive detail to try to show the 1980 constitutional amendment was not meant to apply to abortion issues.

“Whatever else it may contain, a right of privacy does not include a right to cause harm,” one part of the brief said.

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