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State says abortion precedents ‘clearly erroneous’

Photo from Florida Supreme Court

By Jim Saunders

News Service of Florida

March 30, 2023

TALLAHASSEE — As lawmakers consider barring abortions after six weeks of pregnancy, Attorney General Ashley Moody’s office late Wednesday urged the Florida Supreme Court to reject more than three decades of legal precedents that have protected abortion rights in the state.

Lawyers in Moody’s office filed a 67-page brief arguing that justices should uphold a 2022 law that prevents abortions after 15 weeks of pregnancy. The brief said justices should rule that a privacy clause in the Florida Constitution does not protect abortion rights and that past rulings on the issue were “clearly erroneous.”

It also argued that decisions about abortion restrictions should be left to the Legislature.

“Rather than allow the legislative process to unfold in response to new scientific and medical developments, this (Supreme) Court’s (past) abortion cases have disabled the state from preventing serious harm to women and children and stifled democratic resolution of profoundly important questions touching on the treatment of unborn life, when an unborn child is capable of consciousness and pain, and what medical procedures affecting the procreative process are safe and appropriate to allow,” the brief said.

The Supreme Court is considering a challenge by seven abortion clinics and a physician to the constitutionality of the 15-week abortion limit. But the court’s decision — particularly on the privacy issue — is expected to play a critical role in determining if abortions are barred after six weeks.

The Republican-controlled Senate is poised in the coming days to vote on its version of a bill that includes the six-week limit (SB 300), and the House Health & Human Services Committee on Thursday approved the House version (HB 7). That bill is now ready to go to the full House.

Both bills would be contingent on the Supreme Court backing away from the legal precedents on the privacy clause or upholding the 15-week law on other grounds.

Florida voters in 1980 approved a constitutional amendment that established state privacy rights. A 1989 Florida Supreme Court ruling set an initial precedent about the privacy clause protecting abortion rights, and subsequent decisions have followed that precedent.

Attorneys for the plaintiffs challenging the 15-week limit argued in a brief last month that the Supreme Court should stand by the precedents and block the law.

“Plain text and historical context place beyond doubt that Florida’s privacy clause protects against governmental interference in all aspects of a person’s private life, including decisions about pregnancy,” the plaintiffs’ Feb. 27 brief said. “The broad language of the privacy clause provides no textual basis to exclude a matter so private and central to personal autonomy as whether to continue a pregnancy and have a child.”

But in the brief filed late Wednesday, the state’s attorneys went into extensive detail to try to show the 1980 constitutional amendment was not meant to apply to abortion issues.

“Whatever else it may contain, a right of privacy does not include a right to cause harm,” one part of the brief said.

The U.S. Supreme Court last year struck down the Roe v. Wade decision that guaranteed abortion rights. While that left abortion decisions to states, it did not resolve issues about whether state constitutions protect abortion rights.

The seven abortion clinics and physician Shelly Hsiao-Ying Tien filed a lawsuit in June challenging the 15-week abortion law.

Leon County Circuit Judge John Cooper agreed with the plaintiffs that the law violated the state Constitution and issued a temporary injunction. But a panel of the 1st District Court of Appeal overturned the injunction, ruling that the plaintiffs could not show “irreparable harm” from the 15-week limit.

The appeals court’s decision allowed the 15-week limit to take effect, and the plaintiffs are asking the Supreme Court to reinstate the temporary injunction. Justices in January agreed to take up the case, which also involves arguments about the “irreparable harm” issue.

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