Florida Supreme Court justices gave few clues to how they will rule in a challenge to the state’s 15-week abortion ban, leaving Floridians waiting potentially months to know whether a more extreme six-week ban will take effect.
During an hour of oral arguments on Friday, justices grilled lawyers for Planned Parenthood and the state of Florida, questioning why they should — or shouldn’t — overturn decades of court precedent by allowing the 15-week abortion ban to stand.
At issue is whether the Florida Constitution’s right to privacy, passed by voters in 1980, protects the right to abortion.
The Constitution does not mention abortion outright, but the right to privacy states that “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.”
In 1989, the Florida Supreme Court ruled that the clause did protect abortion.
With Republican Attorney General Ashley Moody sitting next to him, Florida Solicitor General Henry Whitaker argued Friday that the prior court’s ruling was incorrect and that the right to privacy was about Floridians’ data and information, not lived experiences.
He pointed to a lack of references about abortion in the public debate around Florida’s 1980 constitutional amendment.
“Abortion is one of the most controversial issues in our society today,” Whitaker told justices. “It is unimaginable, given that controversy, that it would have included abortion, given the mere absence of reference in the public debate.”
But some of the justices shot back. Chief Justice Carlos Muñiz, who was appointed by Gov. Ron DeSantis, noted that Roe v. Wade, the landmark 1973 case that established a constitutional right to abortion, was based on the right to privacy.
“Roe v. Wade may have been an abomination,” Muñiz told Whitaker. “It may have been semantically absurd to talk about that in terms of privacy. But for better or worse, that was part of our cultural lexicon, right?”
“Fair enough,” Whitaker responded. “But I don’t think that was part of our cultural lexicon.”
Muñiz himself acknowledged as a private lawyer in 2004 that the privacy amendment covered abortion, The Washington Post previously reported.
Does decision affect non-abortion cases?
Justice Jamie Grosshans noted that if the justices adopted the state’s interpretation that the right to privacy only applied to information, it would affect “dozens” of other legal cases besides abortion. The privacy clause has also been applied to parents’ rights in making medical decisions, for example.
“That’s 30 years of precedent, completely undone by this one decision,” Grosshans said.
Florida’s 15-week ban is being challenged by Planned Parenthood. Attorney Whitney Leigh White with the American Civil Liberties Union Foundation told justices that since the ban took effect, abortion providers are being forced to deny care, including to a 14-year-old rape survivor.
“If this court doesn’t step in now, there is an even more dangerous six-week ban waiting in the wings,” she told justices.
Muñiz, who was the most active of the justices on Friday, asked White why the court shouldn’t take into account the fact that the U.S. Supreme Court last year threw out Roe v. Wade.
“The same entity that created our understanding of the right to privacy has told us that it was a mirage,” he said. “Should that matter to us?”
White said no, because the high court’s decision last year established that states can do what they like on abortion.
No matter how court rules, there are consequences
Some of Florida’s justices, most of whom were appointed by DeSantis, have known anti-abortion views. Justice Charles Canady, a former anti-abortion lawmaker whose wife is a state lawmaker who sponsored the six-week bill, did not ask questions. Neither did justices Renatha Francis and Jorge Labarga.
Before last year, state law allowed abortions until the third trimester, or 24 weeks, with exceptions if the woman’s life was at risk.
This year — after DeSantis was reelected — state lawmakers passed a bill that would further limit most abortions after six weeks. In cases of rape, incest and human trafficking, abortions would be permitted up to 15 weeks, and exceptions for medical necessity exist beyond that.
If the justices rule that the 15-week ban violates the state’s right to privacy, the six-week law will be nullified. If the justices rule any other way, the six-week ban will take effect 30 days after the decision comes out.
Friday’s courtroom was mostly full, with anti-abortion supporters outnumbering the other side.
John Stemberger, the head of the Christian conservative Florida Family Policy Council, said afterward that he was impressed by Planned Parenthood’s arguments.
“That was surprising to me,” he said.
He said he believed the justices would rule in favor of the ban, but hoped they would do so by overturning past precedent and not simply ruling on a technicality. Some justices questioned whether Planned Parenthood even had a right to bring the lawsuit.
Robyn Schickler, the chief medical officer for Planned Parenthood of Southwest and Central Florida, said at a news conference hosted by the ACLU of Florida on Friday that a ruling to uphold the abortion bans would further preexisting health disparities.
“I already know that the people most harmed will be the same people already hurt by our unjust healthcare system: Black, Latino and Indigenous Floridians,” Schickler said.
Tampa Bay Times staff writer Lauren Peace contributed to this report.