TALLAHASSEE — Pointing to “long-established fundamental rights,” attorneys for abortion clinics and a physician argued in a 67-page brief Monday that the Florida Supreme Court should block a law that prevents abortions after 15 weeks of pregnancy.
The brief was an opening step as the Supreme Court considers a case that could determine whether a privacy clause in the Florida Constitution will continue to protect abortion rights.
Attorney General Ashley Moody’s office has asked justices to reverse more than three decades of legal precedents and find that the privacy clause does not apply to abortion. But in the brief Monday, attorneys fighting the 15-week law said the court should stand by the precedents.
“Plain text and historical context place beyond doubt that Florida’s privacy clause protects against governmental interference in all aspects of a person’s private life, including decisions about pregnancy,” the brief said. “The broad language of the privacy clause provides no textual basis to exclude a matter so private and central to personal autonomy as whether to continue a pregnancy and have a child.”
The Republican-controlled Legislature and Gov. Ron DeSantis last year approved the 15-week limit (HB 5) amid a national debate about abortion rights. Seven abortion clinics and a physician, Shelly Hsiao-Ying Tien, filed the challenge in June, arguing that the law violated the Constitution’s privacy clause.
Leon County Circuit Judge John Cooper agreed with the plaintiffs and issued a temporary injunction against the law. 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 temporary injunction. Justices in January agreed to take up the case, which also involves arguments about the “irreparable harm” issue.
Conservatives have long criticized a 1989 Florida Supreme Court ruling that set an initial precedent about the privacy clause protecting abortion rights. The battle over the 15-week law is playing out after the U.S. Supreme Court in June overturned the landmark Roe v. Wade abortion-rights decision.
Moody’s office will not file a full brief until late March. But in a court document last year, the state’s 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 limit.
“To begin, this (Florida Supreme) Court is likely to hold that the privacy clause of the Florida Constitution does not limit the Legislature from regulating abortion,” Moody’s office argued in the document. “As the U.S. Supreme Court recently explained in overruling Roe v. Wade, a right to abortion is not contained in any of the ‘broadly framed’ rights the U.S. Supreme Court’s pre-Roe precedents had established — whether framed as a ‘right to privacy,’ or as a ‘freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy.’ That reasoning obliterates the foundation of this (Florida Supreme) Court’s own abortion precedents, which heavily relied on the now-abrogated Roe v. Wade and its progeny in establishing a right to abortion under the Florida Constitution.”
But in the brief Monday, attorneys for the plaintiffs disputed such arguments. The brief also said Florida voters approved the privacy clause in 1980 and rejected a proposed 2012 constitutional amendment that would have prevented the state Constitution from being interpreted to “create broader rights to an abortion than those contained in the United States Constitution.”
“The U.S. Supreme Court’s Dobbs decision overruling an implicit, federal constitutional right to abortion in no way undermines this (Florida Supreme) Court’s precedents interpreting Florida’s explicit privacy clause — a broad, freestanding protection with no equivalent in the federal Constitution and rooted in a completely different historical context,” the brief said. “To the contrary, the Dobbs opinion expressly recognized that states remain free to protect abortion under state law. Floridians have twice exercised their sovereign prerogative to do just that: in 1980, when they adopted strong, independent protections for privacy rights, including abortion, under the state Constitution; and in 2012, when they voted against a proposal that would have weakened state abortion protections to be no greater than those under federal law.”
A decision by the Florida court is months away. But the outcome of the case could help determine whether DeSantis and Republican lawmakers try to place additional restrictions on abortions in the future.
The state court has become significantly more conservative since DeSantis took office in early 2019. Three longtime justices who consistently ruled in favor of abortion rights, Barbara Pariente, R. Fred Lewis and Peggy Quince, left the court in 2019 because of a mandatory retirement age and were replaced by DeSantis appointees. Another DeSantis appointee, Renatha Francis, joined the seven-member court last year.
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