Florida Supreme Court hears challenge to states protective law which does not allow abortions after 15 weeks

By Dave Andrusko

If I learned anything over four decades, it is never a good idea to pre-judge where members of a court are by the questions they ask and their body language. That was the approach taken by some but by no means all the media Friday when writing about the Florida Supreme Court which tackled whether the amendment to the state constitution adopted in 1980 protects the right to an abortion.

The language adopted does not mention abortion. The right to privacy states that “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.”

“How would you respond to the fact that there is really virtually no sort of attention given to this subject in 1980?” Justice Jamie Grosshans asked, according to the Washington Post’s Caroline Kitchener, Beth Reinhard, and Rachel Roubein. “Your brief doesn’t have very many supporting documents to show that that was the understanding of any voter in the state in 1980. Abortion has always been a divisive issue — it was divisive in 1980 — why is there not more that emphasizes your view of what that term meant at the time?”

Solicitor General Henry Whitaker added it “is unimaginable given that controversy that it [the privacy amendment] would’ve included abortion given the mere absence of references in the public debate over the question.” 

Chief Justice Carlos Muñiz also asked White why the court shouldn’t take into account the 2022 Dobbs decision which overturned Roe v. Wade.

“The same entity that created our understanding of the right to privacy has told us that it was a mirage,” he said. “Should that matter to us?”

According to the Washington Post, Whitney Leigh White, representing Planned Parenthood,

responded that without knowing what voters were thinking, the words of the clause speak for themselves.

“The plain text is paramount,” she said. But she added that one reason for the absence of that debate “could have been a general acceptance that Roe v. Wade was the law of the land at the time.”

But then Justice John Couriel interrupted: “But you don’t even see that. You don’t even see any op-eds saying this is about Roe.”

Justice Couriel added, “If the original public meaning of that text included abortion, you would expect to see positions from Planned Parenthood and National Right to Life debating each other in 1980.”

White countered that lawmakers and voters understood in 1980 that the privacy clause “unambiguously” extended to decisions that people could make about their own bodies, which she called “decisional privacy,” The New York Times reported.

“Legislators were fully informed and fully on notice that the privacy laws were broad,” she said, adding that voters subsequently rejected an amendment in 2012 that would have exempted abortion from constitutional privacy protections.

But Henry Whitaker, the solicitor general, said that lawmakers and voters in 1980 were trying to protect people from government intrusion into their personal data, which he called “informational privacy.”

“As a matter of common sense, intrusion — not interference, intrusion — into a person’s private life are words that are historically associated with informational privacy,” he said.

“If the Supreme Court finds in the 15-week case that the privacy clause [in the state constitution] does not protect abortion rights, it would effectively allow the state to move forward with the six-week limit which Gov. Ron DeSantis signed on April 14, the Miami Herald reported.

The protective six-week Act was supposed to take effect on June 1. “But first, the state’s top court must decide if the ‘Fetal Protection Act,’ which passed in 2022, violates the right to privacy enshrined in the Florida Constitution,” Rachel Tucker reported.