Florida clinics say court should block 15-week abortion ban

TALLAHASSEE, Florida. – Pointing to “long-established fundamental rights,” lawyers for abortion clinics and a doctor said in a 67-page report Monday that Florida’s Supreme Court should block a law banning abortion after 15 weeks of pregnancy.

The memo was the first step as the Supreme Court hears a case that could determine whether the privacy clause in Florida’s constitution would continue to protect abortion rights.

Attorney General Ashley Moody’s office has asked judges to set aside more than thirty years of court precedent and recognize that the confidentiality clause does not apply to abortion. But on short Monday, lawyers fighting the 15-week law said the court should stick to precedent.

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“The plain text and historical context make it clear that the Florida Confidentiality Clause protects against government interference in all aspects of a person’s private life, including pregnancy decisions,” the post reads. “The broad language of the confidentiality provision does not provide a textual basis for excluding such a personal and important issue for personal autonomy as the preservation of pregnancy and the birth of a child.”

The Republican-controlled Legislature and Gov. Ron DeSantis approved a 15-week limit (HB 5) last year amid a nationwide debate over abortion rights. Seven abortion clinics and doctor Shelly Xiao-Ying Tien filed a lawsuit in June, alleging that the law violated the privacy clause of the constitution.

Leon County District Judge John Cooper agreed with the plaintiffs and issued a temporary injunction against the law. But a bench of the 1st Circuit Court of Appeals overturned the injunction, ruling that the plaintiffs could not bring “irreparable harm” because of the 15-week time limit.

The appeals court’s decision allowed for a 15-week time limit to be enforced, and the plaintiffs are asking the Supreme Court to reinstate the temporary injunction. In January, the judges agreed to hear the case, which also involves disputes over “irreparable harm”.

Conservatives have long criticized the Florida Supreme Court’s 1989 ruling that set the initial precedent for a privacy clause protecting abortion rights. The battle over the 15-week bill played out after the U.S. Supreme Court overturned Roe v. Wade’s landmark abortion rights ruling in June.

Moody’s office will not provide a full report until the end of March. But in a court filing last year, state lawyers cited last year’s U.S. Supreme Court ruling in a case known as Dobbs v. Jackson Women’s Health Organization to try to bolster arguments in support of the 15-week cap.

“To begin with, this (Supreme) Court of Florida is likely to rule that the privacy clause of the Florida Constitution does not restrict the Legislature from regulating abortion,” Moody’s said in a document. “As the U.S. Supreme Court recently clarified in overturning Roe v. Wade, the right to abortion is not contained in any of the “broadly defined” rights established in U.S. Supreme Court precedents prior to the Roe case, whether formulated whether it is a “right to privacy”. or as “the freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy’.” This reasoning erases the basis of this (Supreme) Abortion Court’s own precedents, which relied heavily on the now-overturned case of Roe v. Wade and his descendants in establishing the right to abortion under the Florida Constitution.”

But on a short Monday, lawyers for the plaintiffs contested such arguments. The report also states that Florida voters approved a privacy clause in 1980 and rejected a proposed 2012 constitutional amendment that would have prevented the state constitution from being interpreted as “granting broader abortion rights than those contained in the United States Constitution.”

“The Dobbs decision of the U.S. Supreme Court, which strikes down the implicit federal constitutional right to abortion, in no way undermines the precedents of this (Supreme) Court of Florida interpreting Florida’s explicit privacy clause—a broad, autonomous protection that has no equivalent in the federal Constitution and is based on completely different historical context,” the message says. “To the contrary, Dobbs’ opinion explicitly acknowledged that states could still protect abortion under state law. Floridans have twice exercised their sovereign prerogative to do just that: in 1980, when they enacted strict, independent protection of privacy rights, including abortion, under the state constitution; and in 2012, when they voted against a proposal that would have weakened the state’s protection against abortion to no higher than federal law.”

A Florida court decision is expected in a few months. But the outcome of the case could help determine whether DeSantis and Republican lawmakers try to impose further restrictions on abortion in the future.

The State Court has become significantly more conservative since DeSantis took office in early 2019. Three longtime judges who have consistently ruled in favor of abortion rights, Barbara Pariente, R. Fred Lewis and Peggy Quince, left the court in 2019 due to mandatory retirement ages. and were replaced by DeSantis appointees. Another DeSantis appointee, Renata Francis, joined the seven-member court last year.

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