The fight over Florida's 15-week abortion law and a constitutional privacy protection
One week after the reversal of Roe v. Wade’s federal abortion protections, Florida is in a court battle over a new law restricting abortions to 15 weeks. Abortion supporters say a right to privacy enshrined in the state constitution protects the right to choose.
It has been one week since the Supreme Court removed a U.S. constitutional right to have an abortion.
And this week, a state judge cited Florida’s state constitution for protecting abortion access.
A state judge ruled that the new law restricting abortions from 15 weeks to 24 weeks was unconstitutional on Thursday — a day before it took effect, but has yet to issue his written ruling which, means the 15-week is state law. For now.
The state will appeal the ruling once it goes into effect. An appeals court is more likely to let the new law stand as the case makes its way through the judicial system.
Ultimately, the fate of the law could rest with the Florida Supreme Court, which historically has turned back most efforts to restrict abortion.
That’s because section 23 of the state constitution guarantees Floridians a right to privacy. And that has been interrupted by the state’s high court to include the right to an abortion.
With or without a 15-week ban, Florida has one of the most permissive abortion laws among states in the southeastern U.S., especially compared to its neighbors — Georgia and Alabama.
"We are open," said Kelly Flynn, CEO of health clinic A Woman’s Choice of Jacksonville. She said her clinic canceled abortions as the 15-week ban took effect.
"We are working on transportation for patients later than 15 weeks to go to our clinics in North Carolina," she said. "They are having to pick up their entire family in some sense and drive a great distance to be able to have this procedure done."
While state judge John Cooper said the new restriction is unconstitutional, his opinion does not go into effect until his written court opinion is entered. That may not be until after the July 4 holiday.
"Anybody who would need to get an abortion after 15 weeks will no longer be able to under this law as long as this law is in effect," said Kara Gross, legislative director and senior policy counsel of the ACLU of Florida, which sued the state over the law.
The majority of abortions in Florida are performed before 15 weeks and are done with prescription medicine, not a surgical procedure, according to state data.
Clinic owner Flynn called the past week "confusing and very scary" for patients.
"There's so many people that call in and are questioning if we're still open. 'Is abortion still legal?'" she said. "We're emphasizing that we are open, and we are going to do our best to provide the best possible care and access that we can."
In his oral ruling against the 15-week ban, Judge Cooper said it "violates the privacy provision of the Florida Constitution." That privacy section was added in 1980 after voters approved the amendment.
However, the language does not mention abortion. In 1989, the Florida Supreme Court ruled the section applied to the right to an abortion.
"It is very broad," said the ACLU's Gross of the privacy section in the Florida constitution. "It is a very broad and very expansive and very protective right to privacy that not only includes abortion but includes all governmental intrusion into a person's private life."
John Stemberger with Florida Family Policy Council argued in an opinion column published in the Tallahassee Democrat the constitutional privacy amendment had no intention of being applied to abortions. He says it was directed at what he calls “informational privacy."
A 2012 amendment would have added additional language to the privacy clause that the state constitution "may not be interpreted to create broader rights to an abortion than those contained in the United States Constitution." However, 55% of voters rejected the effort.
The Florida Supreme Court is likely to decide the fate of the 15-week abortion ban. Former Chief Justice Charles Wells said earlier court decisions "leave no doubt that the right to privacy includes abortion in Florida."
State lawyers argued in court the 15-week ban protects the lives of mothers-to-be by not experiencing risks of an abortion later in their pregnancy.