The Florida Supreme Court,6-1, upheld the law banning abortion at 15 weeks, triggering another law banning it after six weeks.

However, the Court also decided to put the question on the ballot in November.

My head is swimming!

Abortion Law

BACKGROUND

Gov. Ron DeSantis signed the 6-week abortion ban into law last April. However, it could only go into effect if the state Supreme Court upheld the 15-week ban.
The 15-week ban was enacted in July 2022, a month after SCOTUS finally overturned Roe v. Wade.

The ACLU filed the lawsuit on behalf of Planned Parenthood of Southwest and Central Florida. The abortion mill claimed the law violated the Florida Constitution’s Privacy Clause.

A trial court placed an injunction on the 15-week abortion ban shortly after it went into effect.

The state appealed. The Florida Supreme Court allowed the law to go into effect as the legislation went through the courts.

First stop: First District Court of Appeals.

The First District Court of Appeals ruled that “Planned Parenthood could not establish irreparable harm, as a result of the stay” of the law.”

Therefore, the court threw out the injunction and allowed the law to proceed.

The plaintiffs appealed to the Florida Supreme Court. Once again, the court did not issue a stay, but the justices agreed to hear the case.

TODAY

The case In re T.W., 551 So. 2d 1186 (Fla. 1989) allowed the Privacy Clause to cover abortion.

The Florida Supreme Court ruled that Planned Parenthood did not “demonstrate a likelihood of success on the merits of the claim.” Therefore, Planned Parenthood did not get its injunction, but the court approved the First District Court of Appeal’s outcome.

“The Privacy Clause of the Florida Constitution does not mention abortion or include a word or phrase that clearly incorporates it,” wrote Justice Jamie Grosshans. “Era-appropriate dictionary definitions and contextual clues suggest that abortion does not naturally fit within the rights at issue.”

Gosshans pointed out that historical sources also did not “support a conclusion that abortion should be read into the provision’s text.”

“Thus, we cannot conclude that in 1980, a voter would have assumed the text encompassed a polarizing definition of privacy that included broad protections for abortion,” continued Grosshans.

Therefore, the Florida Supreme Court ruled that Planned Parenthood could not “demonstrate beyond a reasonable doubt” that Florida’s law banning abortion after 15 weeks is unconstitutional.

As we all know, it is hard to overturn precedent, especially regarding sensitive issues.

Well, the Florida Supreme Court similarly approached the precedent problem as SCOTUS did with Roe:

In deciding how to resolve that tension, we again emphasize that T.W. failed to acknowledge the longstanding principle that statutes are presumed to be constitutional. This error led the Court to read additional rights into the constitution based on Roe’s dubious and immediately contested reasoning, rather than evaluate what the text of the provision actually said or what the people of Florida understood those words to mean. The decision to extend the protections of the Privacy Clause beyond what the text could reasonably bear was not ours to make. As a result, we removed substantial authority from the people’s elected representatives to regulate abortion—a profoundly unique and complicated issue that affects society in many significant ways.

Accordingly, for the reasons given above, we find T.W. to be clearly erroneous. Based on our established test for assessing stare-decisis issues, we now ask whether there is a valid reason not to recede from T.W. See State v. Poole, 297 So. 3d 487, 506-07 (Fla. 2020) (outlining a two-part framework on stare-decisis issues).

Dismantling T.W. also meant rescinding any decisions based on the T.W. ruling, including Gainesville Woman Care, LLC v. State, 210 So. 3d 1243 (Fla. 2017) and North Florida Women’s Health Counseling Servs., Inc. v. State, 866 So. 2d 612 (Fla. 2003). The same thing happened to rulings based on Roe.

Abortion Amendment

The Florida Supreme Court also decided that abortion laws can appear on the November ballot.

The proposed amendment states:

Limiting government interference with abortion.— Except as provided in Article X, Section 22, no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.

The Supreme Court rejected arguments from organizations such as Susan B. Anthony:

Here, the proposed amendment will affect the government “only in the general sense that any constitutional provision does” by requiring compliance with a new constitutional rule. Solar Energy Choice, 188 So. 3d at 830. It will not require any of the branches of government to perform any specific functions nor would it substantially alter their functions. Instead, it primarily restricts the authority of the legislative branch to pass legislation that would “interfere” with abortion under certain circumstances. This is not the type of “precipitous” or “cataclysmic” change to the government structure indicative of substantially altering or performing the functions of multiple branches of government that the singlesubject rule is intended to prevent. See, e.g., In re Advisory Op. to Att’y Gen. re Limits or Prevents Barriers to Local Solar Elec. Supply, 177 So. 3d 235, 244-45 (Fla. 2015) (concluding that although the proposed amendment would limit the authority of the Legislature and other governmental entities to regulate in certain areas, it did “not substantially alter or perform the functions of multiple branches of government producing ‘precipitous’ or ‘cataclysmic’ changes”).

The Court concluded that the amendment for the ballot “embraces but one subject-limiting government interference with abortion-and matter directly connected therewith.”

The Court also found nothing wrong with the amendment’s title and summary. Previous court rulings said that the title and summary do not need to “explain every detail or ramification” of the amendment, explain the interpretation, or explain what might happen in the future because of the amendment.

I mean, ballots would be pages long if amendments had to include all of that!



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