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.”
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.
Questions from the bench
Not all of the justices asked questions during the hearing, which lasted for over an hour: Charles Canady, Jorge Labarga, and Renatha Francis held their tongues. (Labarga and Canady are not DeSantis appointees.)
Labarga has written numerous dissents during the DeSantis court era. Canady is also a holdover from the pre-DeSantis court, but was ardently anti-abortion while serving in the Legislature and Congress and is married to Jennifer Canady, who cosponsored the six-week ban this year. He participated in the hearing nonetheless.
Justice Jamie Grosshans jumped in just minutes after White began making her case with a question about standing, meaning the providers’ right to bring the case on behalf of their medical clients. In July 2022, a split First District Court of Appeal ruled that Circuit Judge John Cooper in Leon County erred in allowing them to do so.
The alternative would be to require individual patients to file lawsuits. Cooper also struck down HB5, ruling that the 1989 T.W. precedent bound his hands, but declined to enjoin its enforcement, and the law took effect on July 1, 2022.
Justices John Couriel and Merdith Sasso also pressed the standing issue, which could supply ground for the justices to reject the providers’ appeal without reaching the major question — again, whether the clause bestows a broad right to decisional autonomy or more narrowly to informational privacy.
White replied that her clients are suffering harm under the law, including inability to provide standard medical care. Judge Cooper, who as trial judge established the basic facts underlying the litigation, found irreparable harm both to patients and providers, she added.
Additionally, the justices allowed a provider to sue on behalf of its patients in a 2017 precedent, White said.
Harm to patients
“In a circumstance like this where the providers themselves are the ones that are directly subject to HB 5’s severe criminal penalties and have a clear stake in the outcome of this case, the third-party standing inquiry if anything is more forgiving, and the trial court’s findings that plaintiff satisfy it is more than sufficient to affirm,” White said later during the hearing.
Patients, too, have suffered harm, including miscarriage patients denied abortions until they developed life-threatening sepsis and a 14-year-old rape victim forced to continue a resulting pregnancy, she said.
Whitaker agreed the court should decide the case on the merits, not standing.
“After the U.S. Supreme Court decision in Dobbs the only thing that is between the Legislature and regulating abortion … are this court’s precedents. Obviously, you have a 15-week law in front of you; as plaintiff notes, there’s a six-week law right around the corner. And I think the continuing vitality of this court’s precedents on abortion is an issue that cries out for resolution by this court on the merits,” he said.
Muñiz remarked that the 1989 justices unanimously found a broad privacy right, including then-Justice Ben Overton, who’d served on the late-70’s Constitution Revision Commission that first raised a privacy amendment.
“Basically, all the justices who were much closer in time than we were — and they weren’t a bunch of you, know, William O. Douglas types. I mean, you don’t get a sense that it’s an ideological thing. It just seems to have been taken as a given that they believed that was the baseline. How are we in a better position than they were to understand, kind of, what the common understanding of the right was?” Muñiz asked.
No “secret understanding” by Overton of what the amendment meant is dispositive, Whitaker insisted. Plus, the court owes a degree of deference to what the Legislature wants, he added.
“We think that the state has a compelling interest in all stages of pregnancy in preserving life. Whatever you think about the status of an unborn life at any particular stage of pregnancy, it is a life in some sense, and it is unmistakably extinguished by the abortion decision. And the Legislature was entitled to take that into account,” Whitaker said.
He conceded the arguments about the damage to patients but insisted: “The Legislature weighed and balanced those concerns against the interest in preserving life. That kind of weighing and balancing is precisely the kind of thing that should have been done by the Legislature and not this court.
White attempted to keep the discussion centered around what the voters intended in 1980.
“Here, in 1980, the general right of privacy and the specific terms used in the Privacy Clause unequivocally had an established meaning that included the right of an individual to decide for themselves whether to continue a pregnancy. That established meaning is part of the plain text,” White said.
But a number of justices wondered at the apparent lack of debate at the time about the amendment’s implications for abortion.
“This court has repeatedly emphasized that when considering a question of constitutional interpretation, the plain text is paramount and that evidence of individual subjective intent of drafters cannot override otherwise broad plain text,” White said.
Inside their heads
“You would expect to see physicians from Planned Parenthood and National Right to Life debating each other about it in 1980 and yet we don’t really see that,” Couriel suggested. “How do you explain that absence?”
Because Roe, with its broad view of privacy and abortion rights, remained the law of the land at the time, White responded, and colored the entire debate.
“The fact that it’s impossible to really understand what exactly was going through any individual’s head at the time is one of the reasons that this court has cautioned against looking to that sort of evidence,” she said.
Muñiz seemed skeptical, and asked whether the Legislature’s decision to pass the restrictions should be looked on favorably if, after “a 50-year reflection by our society, by our state, the people’s elected representatives believe there’s a compelling interest in protecting human life. Why should we as a court not defer to that?”
Because the Constitution controls, and the voters amended it to include a broad privacy right, White replied. Furthermore, even if the justices think T.W. was decided in error, under the court’s own precedents “there may nonetheless be reasons to retain it and one of those is the societal reliance. And the court has suggested the rule of law is one of those interests.”
White added that the voters had a choice to overrule T.W. at the ballot box in 2012 “and the voters refused to do that.”
Muniz himself, then in private practice, wrote at that time that “one purpose of the privacy amendment clearly was to give the abortion right a textual foundation in our state constitution.”
On Friday, the chief justice allowed himself to muse about the consensus in 1980.
“Roe v. Wade may have been an abomination, it may have been semantically absurd to talk about that in terms of privacy. But for better or worse, I mean, that was part of our cultural kind of lexicon,” he said to Whitaker.
“Contextually, the only exception that is expressly numerated in the Privacy Clause is for public records. That’s the only exception,” Whitaker replied. And the law had long protected people against government inspection or seizure of their private records, he added.
Muñiz also noted that the state never claimed the amendment extended only to informational privacy during pleadings in T.W., the 1989 case.
But that’s how it was sold to the voters, Whitaker insisted, with legislative sponsors disavowing any broader motivations.
White warned of ramifications for the court’s privacy jurisprudence should the court reverse T.W.
“This would have a destabilizing impact on innumerous other areas of this court’s privacy jurisprudence. This court has repeatedly applied the Privacy Clause outside the informational privacy context in areas such as parental rights and medical decision-making” notwithstanding the federal privacy right, she argued.
Grosshans made the same point, noting that the state’s written briefs don’t account for how the outcome in this case would affect other privacy-related precedents.
Whitaker replied that not all of those were decided on privacy ground, including affirmance of an individual’s right to refuse medical care or to direct the upbringing of their children.
Muniz hinted at his bottom line.
“You’re asking us to essentially take a whole class of human beings and put them outside the protection of the law — essentially in the sense that if the Legislature wants to protect those human beings they are precluded by the Constitution of Florida from doing that,” he said.
–Michael Moline, Florida Phoenix