Chief Justice Carlos Muñiz questioned Friday whether the Florida Supreme Court should continue to recognize a privacy right to abortion in light of the U.S. Supreme Court’s repudiation last summer of Roe v. Wade, which left the states free to enact their own restrictions on the procedure.
During oral arguments in Planned Parenthood of Southwest and Central Florida v. State of Florida, Muñiz also referred to fetuses as “human beings,” suggesting sympathy to the state’s defense of HB 5, approved by the Legislature in June 2022 to limit access to abortion after 15 weeks’ gestation.
Yet “the same entity” — the U.S. Supreme Court — that found an implied privacy right under the U.S. Constitution “has told us that it was a mirage. They’ve eviscerated it,” Muñiz continued. He referred to Dobbs v. Jackson Women’s Health Organization.
“Should it matter to us that the entire foundation of the asserted right here, essentially the [U.S.] Supreme Court which created the thing in the first place has now said that it was egregiously wrong from Day One? Should that matter to us?”
Whitney White, the ACLU lawyer presenting abortion providers, in reply emphasized that the people seeking abortions also have rights — ones she insisted Florida voters expressly provided through a 1980 state constitutional amendment enshrining privacy rights.
“There is no other context in which this court has held that the state can constitutionally force an individual to take on increased and serious medical risks and harm for the benefit of others. But that is precisely what HB 5 forces pregnant women to do,” White said.
“The protection for privacy rights in this court’s precedents does balance those interests and recognizes the state’s interest in fetal life at the point of viability.”
Federalism argument
Furthermore, White said, nothing in Dobbs prevents the state’s right to enforce a privacy right that includes abortion access.
“And Dobbs repeatedly makes clear that indeed that’s a core part of our federalist system, that states are free to afford that level of protection, and that is precisely what Floridians have done here.”
For his part, Henry Whitaker, Florida’s Solicitor General, argued there’s no evidence the legislators who placed the Privacy Clause on the 1980 ballot or the voters who overwhelmingly approved it understood that the measure would protect abortion.
Whitaker added that an overly generous reading of the language could lead to atrocities.
“They were trying to broaden Florida constitutional law but in a relatively narrow and cabined respect,” he said of the voters.
“I don’t think it’s tenable to read the text of the Privacy Clause in the expansive way that they do,” he said of the providers. “They say that is enshrines, basically, it is a charter of noninterference in any kind of personal decision, which this court has never interpreted the Privacy Clause to sweep that broadly.
“The consequences would be striking. I’m sure that my friends on the other side would not take this position but they do not provide a limiting principle to distinguish abortion from infanticide, from euthanasia, from spousal abuse. Those all involve personal decisions I suppose the government could be said to be interfering with in some sense when the Legislature takes action to remedy choices that harm others.”
The Privacy Clause
The amendment, enshrined as Article 1 Section 23 of the state’s governing charter, proclaims: “Every natural person has the right to be let alone and free from governmental intrusion into his 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.”
The state argues the measure was intended to protect only informational privacy, meaning to one’s private data and records. The providers argue for reading the first sentence broadly to protect the right to make personal decisions about one’s life and body.
An earlier Florida Supreme Court unanimously adopted the latter view in 1989, in a case called In re T.W., striking down the state’s abortion parental consent law. Five of the seven justices who sat Friday, however, are appointees of the anti-abortion Gov. Ron DeSantis.
The case has attracted national attention since, if the court retreats from T.W. and upholds the 15-week ban, the last refuge for abortion rights in the Southeast would fall. Additionally, a six-week ban enacted this year would take effect 30 days after a ruling upholding HB 5.
This story will be updated with additional details.
This article originally appeared in florida phoenix