DeSantis-packed court skeptical of Florida's long-standing abortion protections

TALLAHASSEE, Fla. — The conservative majority on Florida’s Supreme Court on Friday expressed skepticism that long-standing abortion protections, enshrined in the state’s Constitution, were intended to safeguard the procedure.

The justices heard arguments in a legal challenge to Florida’s 15-week abortion ban, which provides no exceptions for victims of rape or incest. The state’s GOP-led Legislature approved it and Gov. Ron DeSantis signed it into law in 2022 — and have since approved an even more restrictive ban at six weeks of pregnancy.

The legal challenge, brought by Planned Parenthood, the ACLU of Florida and others, hinges on a 1989 state high court decision that determined the right to privacy prohibits most abortion restrictions. That 1989 ruling has been used to protect abortion rights in Florida.

But DeSantis appointed five of the seven justices on the current court, and many believe they will interpret that law different.

Chief Justice Carlos G. Muñiz, a DeSantis appointee, said as much during Friday’s hearing, suggesting that linking Florida’s constitutional right to privacy with the 1973 Roe v. Wade decision was an “abomination.”

“Roe v. Wade may have been an abomination, it may have been semantically absurd to talk about that in terms of privacy,” Muñiz said. “But for better or worse, it was part of our cultural lexicon.”

The state Supreme Court’s ruling will have far reaching consequences beyond the 15-week abortion ban. This year, lawmakers passed legislation that bans abortions at six weeks of pregnancy, essentially two weeks after a pregnant person’s first missed period. That law has been on pause while the Supreme Court decides the fate of the 15 week abortion ban but it will go into effect within 30 days if the justices uphold last year’s ban.

Any decision will also affect thousands of people beyond Florida’s borders. Many people travel to Florida to get abortions because neighboring states, including Alabama, have much stricter bans on abortion. If the Florida’s high court approves the abortion restrictions, many in the Southeast will need to travel to Virginia or Washington, D.C., for the procedure.

The plaintiffs in the case argue the state privacy right was created to expand the federal abortion protections under Roe. During the hearing, Muñiz asked Florida Solicitor General Henry C. Whitaker whether voters knew the state’s privacy right, which was successfully added to the Constitution in 1980 as a voter-approved referendum, was meant to protect abortions.

Whitaker asserted that most voters did not consider Roe when they cast ballots on the privacy clause.

The justices also asked ACLU lawyer Whitney Leigh White, who was representing the plaintiffs, about the original intent of the privacy clause and how it was explained to voters. Justice John D. Couriel asked White, for example, why the plaintiffs didn’t give the court any record proving that the framers of the privacy clause had intended it to protect abortion access.

“If that’s the original meaning of that text you’d expect to see groups like Planned Parenthood and Right to Life debating that in 1980,” Couriel said. “How do you explain that?”

White said voters in 1980 were well aware of the 1973 Roe decision, and the framers of the privacy clause did not want voters to think it affected only abortion.

“People understood that the text was broad and it would include a variety of issues, including abortion,” White said.

White also warned the court that thousands of people have already suffered from the impact of the 15-week ban since it took effect in July of last year.

“These injustices have been going on for a year,” White said. “And if the court does not act now, there’s an even more dangerous six-week ban waiting in the wings.”

Inside the courtroom, Attorney General Ashley Moody, whose office defended the 15-week ban, sat at the lawyer’s table for the state. Also in attendance was Sen. Erin Grall (R-Vero Beach), who was the sponsor of both abortion bans. She sat in the front row on the same bench as Democratic state Sen. Lauren Book, the minority leader of the Senate and a staunch abortion rights supporter.

The justices are not expected to issue a ruling for several weeks or even months.