Florida Supreme Court – No Right to Abortion in Florida Constitution

Apr 1, 2024

Today, the Florida Supreme Court issued a groundbreaking opinion that upholds the 15-week abortion ban and overrules the prior abortion opinions going back to the first abortion opinion in 1989 – the In re T.W. case. In doing do, the Court ruled there is no right to abortion in the Florida Constitution. Now that the 15-week ban has been upheld, the six-week ban will soon go into effect.

Liberty Counsel filed an amicus brief to the Florida Supreme Court in Planned Parenthood of Southwest and Central Florida, et al., v. State of Florida, et al., on behalf of the Frederick Douglass Foundation, the National Hispanic Christian Leadership Conference, Fiona Jackson Center for Pregnancy, and Issues4life Foundation, in defense of Florida’s 15-week abortion ban since the Florida Constitution affirms “the right to enjoy and defend life” regardless of “race, religion, national origin, or physical disability.”  

Liberty Counsel Action also filed an amicus brief in the same case arguing that the Court should overrule the 1989 In re T.W. case that ruled that the privacy amendment in Article I, section 23, provided a right to abortion. That decision and subsequent abortion decisions have now been overruled.

Today’s opinion states in part the following: 

“The parties have presented thoughtful arguments as to the scope of this provision, which has traditionally been referred to as the “Privacy Clause.” Those legal arguments on the Privacy Clause’s meaning are, in our view, distinct from the serious moral, ethical, and policy issues that are implicated in the subject matter of this case. Our analysis focuses on the Privacy Clause’s text, its context, and the historical evidence surrounding its adoption. After considering each of these sources and consistent with longstanding principles of judicial deference to legislative enactments, we conclude there is no basis under the Privacy Clause to invalidate the statute. In doing so, we recede from our prior decisions in which—relying on reasoning the U.S. Supreme Court has rejected— we held that the Privacy Clause guaranteed the right to receive an abortion through the end of the second trimester” (emphasis added). 

“This pronouncement was flawed in several respects. T.W. associated the language of the Privacy Clause with Roe’s understanding of privacy; but it did not justify how that concept of privacy aligned with our constitution’s text—i.e., “the right to be let alone and free from government intrusion into private life.” T.W. also did not ask how Florida voters would have understood the text of the provision and how that understanding would be informed by Florida’s long history of proscribing abortion. As a result of its analytical path, T.W. did not look to dictionaries, contextual clues, or historical sources bearing on the text’s meaning. Instead, overlooking all these probative sources, it adopted Roe’s notions of privacy and its trimester framework as matters of Florida constitutional law.9 Compounding these errors, the T.W. majority failed to apply longstanding principles of judicial deference to legislative enactments and failed to analyze whether the statute should be given the benefit of a presumption of constitutionality” (emphasis added). 

“In light of T.W.’s analytical deficiencies and subsequent U.S. Supreme Court decisions rejecting the Roe framework on which T.W.’s reasoning depended, our assessment of the challenged statute requires us to examine the Privacy Clause and, for the first time in the abortion context, consider the original public meaning of the text as it was understood by Florida voters in 1980.” 

“As is apparent at first glance, the provision does not explicitly reference abortion at all. Thus, if Planned Parenthood is to prevail, we must find that the public would have understood the principle embodied in the operative text to encompass abortion, even though the clause itself says nothing about it.”

“We pause to summarize the textual, contextual, and historical evidence we have discussed so far. The Privacy Clause of the Florida Constitution does not mention abortion or include a word or phrase that clearly incorporates it. Era-appropriate dictionary definitions and contextual clues suggest that abortion does not naturally fit within the rights at issue. Reliable historical sources, like the technical meaning of the terms contained in the provision, the origin of the amendment, and the framing of the public debate, similarly do not support a conclusion that abortion should be read into the provision’s text. Roe is also relevant to our analysis of the public meaning of the Privacy Clause. But speculation as to Roe’s effect on voter understanding does not overcome the combined force of the substantial evidence we have examined above. 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” (emphasis added). 

“Based on our analysis finding no clear right to abortion embodied within the Privacy Clause, Planned Parenthood cannot overcome the presumption of constitutionality and is unable to demonstrate beyond a reasonable doubt that the 15-week ban is unconstitutional” (emphasis added). 

“This conclusion brings us into tension with our precedent, primarily T.W. in which we derived a right to abortion from the Privacy Clause’s text and invalidated a statute on that basis.”

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 constitutionalThis 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” (emphasis added). 

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.” (emphasis added). 

“Apart from arguing reliance, Planned Parenthood does not offer any other valid reasons for keeping T.W. Accordingly, because Planned Parenthood has failed to demonstrate a valid reason for retaining T.W., we recede from it. We also recede from Gainesville Woman Care and North Florida Women’s Health, which both applied T.W.’s flawed reasoning and offered no additional doctrinal justification for locating a right to abortion in the Privacy Clause” (emphasis added). 

Liberty Counsel Founder and Chairman Mat Staver said, “Today, the Florida Supreme Court rejected the dreadful history of abortion that began with an activist bench in 1989. Even before Liberty Counsel was founded in 1989, I have worked to overturn the In re T.W. decision because it did not have any basis in the Florida Constitution and has caused incalculable damage. Today, the wrongly decided abortion opinions are no more. The Constitution wins. Life wins.”   

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