Follow-Up to Dodds — the Florida Abortion Ruling
Are you wondering how a Florida judge can block the state’s new anti-abortion law since the Supreme Court struck down Roe v. Wade, returning the issue to the states?
Me too!
So, here’s what I’ve been able to gather about the situation:1
The Supreme Court of the United States (SCOTUS), on June 24, 2022, struck down Roe at the federal level based on the US Constitution, but Judge John Cooper in Leon County, Florida, on June 30, 2022, ruled that the state’s new anti-abortion law violates the Florida constitution, finding that the state’s constitutional right to privacy is stronger than the federal protection.
While this might surprise outside observers, differences between the national constitution and the state constitution is certainly possible. When I investigated it further, sure enough! Florida has an explicit “right to privacy” in its state constitution: Article 1, Section 23.
Furthermore, that’s not the only mention of privacy, Article 10, Sec. 22 provides the legislature the authority to grant parents the right to notification before their child terminates a pregnancy. (Notice the reference in this next section to SCOTUS interpretations just nullified by Dobbs!)
By the way, we should also note that Florida’s constitution can be amended by popular ballot referendum, and it frequently is amended at elections. However, that doesn’t always mean much — they voted “high speed rail” into the constitution in 2000 but it never happened.
Back to Judge Cooper and the issue at hand. The new law, HB 5, changed the age after which an unborn baby cannot be killed from the existing rule of “viability” in the “third trimester” back to 15 weeks.
You can read the whole bill here, but trust me, the picture above is the operative part.
Catch the situation — the previous Florida law said: “no abortions in the third trimester” (about 26 weeks) and has exceptions for life/health of the mother and non-viable pregnancy. The new law says, “no abortions after 15 weeks” with the same exact exceptions.
The ACLU filed this lawsuit on June 1 (before the Dobbs ruling was issued) and their challenge is based on the Florida constitution. In their Complaint they allege that around 5,000 abortions take place in FL annually after 15 weeks.
That’s interesting since the CDC states that 79,648 abortions were performed in Florida in 2021. So only 6% of FL abortions are at issue in this case — 94% remain legal even under the new law.
Of course, the ACLU also argues (citing the CDC) that abortion is “one of the safest medical procedures” calling it “99% safe” on their website. Any rational person would understand abortion is 100% deadly to unborn babies.
In 1989, the Florida Supreme Court interpreted Art. 1, Sec. 23 to include the right to an abortion. The case (In Re TW) dealt with a Florida law in place at that time requiring parental consent or judicial bypass prior to a child obtaining an abortion.
In the case of In Re TW, the court reviewed the privacy provision, “Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.” Thus, this provision has become a huge bucket for courts to create any sort of privacy right it wants.
For example, enhanced privacy of court records, blood donor records, banking records, attorney applications, psych counseling, and “personal decision-making” all fall under the privacy provisions in the Florida constitution. The court goes on to apply the highest possible standard of judicial review: strict scrutiny.
That’s a real interesting conundrum when you’re applying strict scrutiny to something that hasn’t even been defined! But, no surprise, the conclusion was “obvious” to the court at this point:
Although the Florida Court in 1989 purported to base its decision solely on the FL constitution, it referenced Roe repeatedly in its logic and analysis.
In the current case Judge Cooper has not yet issued a formal ruling, but his verbal announcement indicates that he is entering a state-wide injunction against implementing the new abortion restriction based on the 1989 decision. (Two other cases followed along the same logical trail.)
Once his opinion is issued, the state will obviously appeal, causing this case to quickly go “back” to the Florida Supreme Court. Will the court take Dobbs into consideration and follow the “new” guidance from the federal level like T.W. did in 1989 relying on Roe? If they do, the 15-week ban will go into effect and 5,000+ lives per year will be saved.
This case matters even beyond Florida, because it represents the “new battlefield” where the abortion debate is now going to be waged: state legislatures and state courts. Both sides agree on one thing: the battle is far from over.
Matt Davis is the Chief Executive Officer at Maranatha Baptist University and an attorney licensed to practice law in Illinois, Florida, and Wisconsin. Follow him on Twitter @maranathaceo and his podcast, On Mission.
Photo by Tingey Injury Law Firm on Unsplash
- Caveat, I am a FL licensed attorney, but this is not legal advice! [↩]