Florida’s Planned Parenthood believes that the right to privacy makes the old 15-week ban on abortions unconstitutional, thereby vitiating the old 15-week law and the current six-week prohibition.
But a loss means the six-week ban stays.
Everyone understands that each state has its own constitution, but not everyone knows that the state constitutions can vastly differ from the U.S. Constitution. They are all longer. All cover topics not covered in the U.S. Constitution (Water Rights and Education are two examples).
Most importantly, many states have explicit “rights to privacy” spelled out in their constitution.
As with every regulation, law, and Constitutional provision, the U.S. Constitution acts as a baseline. A state is free to offer more protection, in this case, more privacy, than the federal Constitution.
To the extent that the federal Constitution created a right to privacy, it sprung from the First Amendment, providing freedom of religion and expression. The Third Amendment prevents the quartering of soldiers. The Fourth Amendment prohibits unreasonable search and seizure. The 14th Amendment substantive due process clause provides protection of some areas so private that no law could be considered “due process.”
The combination of those amendments argues that a right to privacy “lives” in the federal Constitution.
Planned Parenthood’s challenge to the old 15-week ban — the case was filed before the six-week ban was enacted — under the express guarantee of privacy is a first, and though it would not affect other states, it could provide powerful “persuasive” authority in courts all over the country.
The lower court found that the express right to privacy protected the right to an abortion.
As ABC News reports:
“Justices asked White why the privacy clause — passed in the 1980s via voter referendum — did not arouse debate between anti-abortion groups and pro-abortion groups at the time, suggesting the right to abortion was not implied in the privacy clause.
Perhaps because at the time there was at least one, possibly two (they don’t give dates) SCOTUS decisions upholding the right to an abortion under the federal Constitution?
It wouldn’t occur to people at the time that a radical and illegally imposed super-majority of conservatives would overrule critical precedent.
Planned Parenthood lawyer Whitney White provided a statement after arguing the case:
“The state has now asked the court to wipe out any constitutional protection for Floridians’ ability to have an abortion at all, clearing the way for Florida to enforce Gov. DeSantis’ ban on abortion at six weeks of pregnancy, a time when many people don’t even know they are pregnant.”
“The Florida Supreme Court should respect the rule of law and protect the right of people to make personal medical decisions during pregnancy for themselves.”
Of course, one of the conservative justices (the majority on the Florida court is very conservative) asked why the Supreme Court should overrule a law that was just tightened by the legislature.
I would have loved to provide two answers:
One, the Constitution exists to provide special protection in critical areas from what the Founders called “the tyranny of the majority.”
Second, it would be worth pointing out that Florida is gerrymandered so comprehensively that the legislature doesn’t reflect a true balance of the people and then cite the polls finding that a true majority of Floridians support reasonable abortion rights.
A ruling against Planned Parenthood would provide devastating persuasive authority in other red states.
But even if the high court overrules the lower court and finds for the State, the battle isn’t totally over.
Florida already passed the right to privacy through a referendum. A justice asked why abortion wasn’t debated. A majority of Floridians support reasonable abortion rights.
The Constitution could be amended by referendum again, providing specific protection for the right to an abortion under the right to privacy. Groups are already setting up the referendum.
State constitutions are very different than the federal Constitution.
Florida could make its Constitution the opposite. After all – it’s providing women more privacy.
The U.S. Constitution is merely a baseline.
Florida Supreme Court justices question state abortion protections https://t.co/klRC9HReh1
— jackie callahan (@crutchfoot) September 8, 2023
This column is based on original reporting by Nadin El-Bawab of ABC News.
I can be reached at email@example.com and on Twitter @JasonMiciak.
Editor’s note: This is an opinion column that solely reflects the opinions of the author.
Jason Miciak is an associate editor and opinion writer for Occupy Democrats. He's a Canadian-American who grew up in the Pacific Northwest. He is a trained attorney, but for the last five years, he's devoted his time to writing political news and analysis. He enjoys life on the Gulf Coast as a single dad to a 15-year-old daughter. Hobbies include flower pots, cooking, and doing what his daughter tells him they're doing. Sign up to get all of my posts by email right here: