04/02/2024
People occasionally find my summary of court decisions to be relatively reliable, so I figured I'd pass on what I've learned from a complete review of Planned Parenthood of Southwest and Central Florida v. State of Florida, a decision of the Florida Supreme Court issued yesterday that is, regrettably, not an April Fool's prank.
We all understand by now that the U.S. Supreme Court's 2022 decision in Dobbs held that Roe v. Wade (from 1973) and the 1992 Casey decision that mostly retained Roe were wrongly decided, that no one was really relying on them, and that there was no longer a Constitutional right to abortion emanating from privacy protections impliedly existing in the Due Process Clause of the Fourteenth Amendment. Dobbs purported to return the decisions on abortion legislation to the States.
And while the Florida of 2024 is largely run by right-wing pro-life Republicans, back in 1980, seven years after Roe, Florida voters added an express Privacy Clause to the Florida Constitution. The current Florida Legislature added a 15-week abortion ban, but it also passed a 6-week ban that had "trigger" language where it would only take effect if the Florida Supreme Court held that Florida's privacy clause didn't protect abortion rights.
And yesterday, that's what six of the seven Florida Supreme Court Justices held. For those who are counting and put stock in this sort of thing, five were appointed by Gov. DeSantis, and one (Justice Canady) was appointed by Gov. Crist (when he was the Republican Governor). The three female justices all joined the opinion, with Justice Grosshans, a female justice, authoring the decision. The dissenter was Justice Labarga, the other Crist appointee.
The majority receded from three prior Supreme Court of Florida cases that held that Florida's Privacy Clause contained a right to abortion. The 2024 court held that the word "abortion" isn't in the clause (which is true) and that Florida voters had no real understanding in 1980 that that's what "privacy" meant (which is difficult to accept in light of the fact that lawyers and the media equated Roe and privacy and abortion and privacy).
At the same time, in a decision I have not yet read, the court did refuse to block a pro-choice Florida Constitutional Amendment from being placed on the November 2024 ballot. That was a 4-3 decision. Interestingly, for those who enjoy counting these sorts of things, all four male Justices voted to place the abortion rights on the ballot, while all three female justices voted to keep abortion rights off of the ballot. The three dissenters wrote separate dissents where they fear that Florida voters don't understand what this amendment will do. So let me clear it up for you: it protects abortion rights through the time of viability, at which point the Legislature can make rules banning or restricting abortion. And viability means what it meant for all those years under Casey from 1992 to 2022--the time at which a fetus can survive outside the womb.
Whatever you think about the two decisions, here are the facts. The U.S. Supreme Court threw this decision to the states, and the Florida Supreme Court decision takes away any protections given to us by the Floridians of 1980. Florida's abortion law is in the hands of Florida voters who show up on election day in November 2024. Florida abortion law won't be governed by what judges or voters or politicians thought in 1973, 1980, 1992, or 2022, or 2023. It'll be determined by what Florida voters think in November 2024.
Thirty days from yesterday (so, I think, May 1, right?), Florida will have a 6-week ban on abortion. Maybe it's not getting enough attention because it doesn't take effect until 30 days after the decision issued yesterday, but expect to start hearing talk about it soon.
The text of the proposed amendment would get rid of that 6-week ban and the 15-week ban and create a new right under the Florida Constitution. It will provide that "no law shall prohibit, penalize, delay, or restrict abortion BEFORE VIABILITY or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider." The amendment will not affect the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.
This WILL be on all Florida general election ballots in November 2024 (the same date as the presidential election). It takes 60% "yes" votes to pass. If you want to be counted on this issue, now is your chance.
