Florida Supreme Court backs abortion ban; seismic decision reverses 34-year privacy ruling

The Florida Supreme Court Monday upheld a 15-week ban on abortion — a momentous decision that reversed 34 years of court precedent, which had held that a privacy provision in the state constitution protected a woman’s right to terminate a pregnancy. 

Instead, the 98-page, 6-1 decision – with Justice Jorge Labarga dissenting – confirmed the constitutionality of the state's abortion ban (HB 5), passed by lawmakers and signed by Gov. Ron DeSantis in 2022.

It also triggers enforcement of a six-week ban known as The Heartbeat Protection Act, which DeSantis signed in April at a private late-night ceremony while he prepared for a presidential run. Enforcement of the six-week ban will go into effect in 30 days. 

DeSantis has appointed five of the seven justices since taking office in 2019.

In the decision, the court also said it was "receding" from its longstanding precedent in the 1989 case known "In re T.W.," in which it then said the state's constitutional right to privacy provides greater privacy rights than those implied by the U.S. Constitution. That decision held that a law requiring parental consent for an abortion violated the right to privacy.

At the same time, however, justices also OK'd a constitutional amendment for this November's statewide ballot aimed to guarantee abortion access in Florida, signaling that voters ultimately will have the last say.

Nonetheless, Monday's decision imposes a drastic change in Florida law, with legislation and court rulings over the past two years eliminating two-thirds the amount of time – 18 weeks – a woman has to decide whether to have an abortion.  

In the majority decision authored by Justice Jamie Grosshans, she said the court "conclude(d) 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."

She added there is only a "tenuous connection between 'privacy' and abortion — an issue that, unlike other privacy matters, directly implicates the interests of both developing human life and the pregnant woman."

In 1980, voters would not have understood the language of a right “to be let alone and free from governmental intrusion into the person’s private life" to extend to a right to abortion, the opinion says.

"Indeed, our Privacy Clause jurisprudence outside the abortion context recognizes that the right does not authorize harm to third parties," it adds.

In his 30-page dissent, Labarga countered: "I am convinced that in 1980 (when voters approved the privacy provision at issue as its own amendment), a Florida voter would have understood that the proposed privacy amendment included broad protections for abortion.”

Indeed, he adds, there is "substantial evidence that overwhelmingly supports the conclusion that the public understood the right of privacy to encompass the right to an abortion. ... (T)he dominance of Roe in the public discourse makes it inconceivable that in 1980, Florida voters did not associate abortion with the right of privacy."

Before the 15-week ban, an abortion in Florida was permitted up to 24 weeks after gestation, a threshold established by a 1992 U.S. Supreme Court decision and protected by the In re T.W. ruling that cited the privacy clause in the state constitution.

The decision comes in the wake of DeSantis chiding pro-life supporters for not being aggressive enough in battling pro-abortion initiatives since the U.S. Supreme Court reversed the Roe v. Wade decision in 2022 and empowered states to regulate abortion access.

Planned Parenthood of Southwest and Central Florida had challenged the 15-week ban as a violation of the privacy clause. Their attorney, Whitney White, argued to deny a person the ability to make a “deeply personal decision about families, bodies, and health” free of government interference is an infringement of the right the amendment guarantees.  

Closing the window on abortion:Florida lawmakers send 15-week abortion ban to Gov. Ron DeSantis

Florida constitutional right to privacy at issue 

Attorneys for the state have argued that more liberal-leaning justices got it wrong more than three decades ago when they ruled unanimously that a voter-approved privacy clause in the state constitution provides a fundamental right to abortion. 

Arguing on behalf of the ban, Florida Solicitor General Henry Whitaker told the justices the privacy provision was erroneously invoked in the 1989 case and said it pertains only to data and other information. Furthermore, he said even if the clause did apply to personal decisions, it “certainly would not provide a right to cause harm, including to unborn life.”

Will voters have a voice?Former Florida GOP elected officials support letting voters decide on abortion

Read the Supreme Court ruling on Florida abortion

James Call is a member of the USA TODAY NETWORK-Florida Capital Bureau. He can be reached at jcall@tallahassee.com and is on X as @CallTallahassee.