Florida abortion rights backers turn hopes to amendment after state Supreme Court hearing

Abortion rights supporters are pinning their hopes on a proposed constitutional amendment that would guarantee Floridians access to the procedure after the conservative Florida Supreme Court heard oral arguments Friday on the divisive issue.

The seven-member court, which includes five justices appointed by Gov. Ron DeSantis, heard arguments in the lawsuit brought by Planned Parenthood, the American Civil Liberties Union and other groups that challenged Florida’s 15-week abortion ban.

If justices uphold that law, a stricter six-week ban will take effect 30 days after the ruling. The court will issue its decision at a future date.

State Rep. Anna Eskamani, D-Orlando, said she has little hope the court will block the abortion ban. Her focus is on a 2024 proposed ballot initiative that would protect abortion until fetal viability, which is generally defined as about 24 weeks of pregnancy.

“The court will not rule in our favor — that was made clear in their biased questioning,” she said after the roughly one hour of arguments ended.

Senate Democratic Leader Lauren Book said the “decision belongs with the people.”

“I would never presume to know with certainty where the justices are until they make their ruling, but all of Florida saw the same things I did,” she said.

Much of Friday’s hearing focused on this question: Did Florida voters intend to protect abortion rights when they approved a constitutional amendment in 1980 that guaranteed a right to privacy? In the past, Florida’s Supreme Court has interpreted that privacy clause as protecting abortion rights.

But Henry Whitaker, Florida’s solicitor general, told the justices that the amendment was intended to protect a person’s “informational privacy,” such as the collection and distribution of government records.

Whitney White, an attorney for the ACLU, argued the amendment goes further than that.

“The privacy clause refers to a right to be let alone and free from government interference into a person’s private life, and private life includes not just private information but private activities and private decisions,” she said.

Several justices questioned why there wasn’t more public debate about the implications for abortion rights if voters approved the privacy amendment.

“How would you respond to the fact that there is really virtually no sort of attention given to this subject in 1980?”Justice Jamie Grosshans asked. “Your brief doesn’t have very many supporting documents to show that that was the understanding of any voter in the state in 1980.”

White responded the text of the amendment was clear, and there was a general acceptance at the time that Roe v. Wade protected abortion. The U.S. Supreme Court overturned that landmark case guaranteeing a federal right to an abortion last year, sending the issue back to the states.

Florida’s privacy amendment reads, “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

Other lines of questioning focused on whether the plaintiffs had legal standing to challenge the 15-week abortion ban.

Those questions suggest justices may be exploring the possibility of dismissing the lawsuit on procedural grounds, which could be viewed as a less partisan and political decision, said Caroline Mala Corbin, a constitutional law professor at the University of Miami School of Law.

“It is expected they are going to reject this challenge to the 15-week ban,” she said. “The question is on what grounds they would do it.”

Abortion bans passed by Florida lawmakers include exceptions for fatal fetal abnormalities and the life of the mother. The six-week ban also includes rape and incest exceptions, but the 15-week law does not.

The Liberty Counsel, a Maitland-based conservative organization that opposes abortion, was optimistic in a statement it issued after the oral arguments.

“We trust that the Florida Supreme Court will establish this as a state that values unborn life according to the state Constitution,” said Mat Staver, founder and chairman. “This court should reject the former days of judicial activism.”

Floridians Protecting Freedom, which is sponsoring the abortion initiative, has submitted nearly 300,000 valid signatures as of Sept. 1, qualifying the proposal for a review by the state Supreme Court.

The group needs 891,523 signatures to get the issue before voters next year. If it makes the ballot, it will need the support of 60% of voters to succeed.

But the Florida Supreme Court has the final say on whether the language is clear enough for it to qualify for the ballot.

“Whatever the outcome of this legal challenge, our campaign is poised to give voters the chance to reclaim their freedom and put a stop to politicians interfering in our personal medical decisions once and for all,” said Lauren Brenzel, campaign director for Floridians Protecting Freedom.

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