Last Friday, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, eliminating the federal constitutional right to abortion and overruling Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. Justice Samuel Alito, who penned the majority opinion, wrote that “[t]he Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” In overruling Roe and Casey, the court returned the regulation of abortion back to “the people and their elected representatives.”
In the wake of Dobbs, the battle over the future of abortion access has migrated from the Supreme Court to state courts across the country. Judges in Utah and Louisiana, where the state’s “trigger laws” were set to take effect after Roe fell, temporarily blocked those laws. And in Florida, health care providers filed a lawsuit to block a 15-week abortion ban that was signed by Gov. Ron DeSantis in the spring from going into effect on July 1. The plaintiffs argue the ban on abortion violates individual privacy rights that are enshrined in the state constitution. A state judge is likely to rule this week on the plaintiffs’ request for a temporary pause of the law.
Their case hinges on an understanding of Florida’s privacy rights. At the federal level, Roe was based on an implicit right to privacy that the court found in the federal constitution. By contrast, Florida’s state constitution contains an explicit, freestanding, and broadly worded right to privacy. Article I, Section 23, of the Florida Constitution states: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” In previous rulings, the Florida Supreme Court found the right to abortion within that right to privacy— even though the provision does not explicitly mention abortion.
But the court’s makeup has changed. Since 2019, the court has become more conservative. It formally weakened the doctrine of stare decisis and has overruled many prior precedents. Can the court revisit its abortion precedents? It will soon have the opportunity as the lawsuit over the state’s abortion ban, which has no exceptions for incest, rape, or human trafficking, moves forward.
The key question the Florida courts will have to answer is: Does the presence of an explicit privacy right in the state constitution mandate a different holding in Florida than that in Dobbs? In this regard, the Dobbs decision holds a clue for interpreting Florida law.
The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.
The right to an abortion is implicit in Florida’s privacy right. But the analysis isn’t that straightforward. To understand why abortion is protected under Florida’s privacy provisions, we have to take a closer look at legal history of abortion and privacy within the state.
In 1978, the Florida Constitution Revision Commission, which meets every 20 years to propose changes to the constitution, placed a proposed amendment on the ballot to add a privacy right. The amendment was presented as a pack of changes; voters rejected them all. But in 1980, the Legislature placed the privacy-right amendment back on the ballot, this time as a stand-alone amendment, which voters approved. In the Legislature, the understanding was that the amendment would protect decisional and informational privacy rights.
As the lead sponsor of the amendment later wrote about the debate in the state House: “The existence of Roe v. Wade muted debate on issues like abortion and gay rights. Proponents suggested that the resolution had no effect on current law since the federal right was assured under the United States Supreme Court’s decision.” As far as I can tell, the public debate in 1980 on the proposed amendment did not mention abortion, but further research may turn something up.
It is also true, however, that Roe was part of the general background. Not only that, but as Republican state Rep. Mike Beltran observes in an otherwise completely wrong column, “the 1980 Amendment to the Florida Constitution was enacted less than a decade after Roe, while pro-lifers were actively attempting to reinstate protections for the unborn, and less than a decade before they succeeded in Casey, and yet it contains no mention of abortion whatsoever.” It cannot be seriously disputed that the public knew of Roe and the attempts to undermine it at the time it approved Florida’s privacy right.
So how might today’s conservative court interpret the privacy protections in light of the absence of abortion from the text of the privacy right and the presence of abortion as background when the right was ratified? It is not a given that the current Florida Supreme Court would conclude that the right to an abortion is implicit in the privacy right. That’s partly because conservatives’ preferred mode of constitutional interpretation is original public meaning. In their eyes, the meaning of the text is the objective meaning the words would have had to a reasonable listener at the time of adoption.
Yet the debate does not end there.
In 1989, not long after Florida adopted the privacy right, the Florida Supreme Court decided In re T.W. There, the court applied the privacy right to strike down a parental consent statute that required parents of minors seeking an abortion to consent to the procedure unless the minor was granted a waiver by a judge. The court determined that “the amendment embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution.” Later in the opinion, the court held: “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy.” This right also extended to minors. Two justices wrote separate opinions where each concluded that, in light of Roe, the people necessarily included the right to an abortion within the privacy right.
Since In re T.W., the court has reaffirmed that the right to privacy protects the right to an abortion. In one significant 2003 case, North Florida Women’s Health Services v. State, the court struck down a parental notice statute requiring physicians to notify the parents when a minor seeks an abortion. This is where history subsequent to the privacy right’s adoption becomes important. Responding to the North Florida Women’s decision, the Legislature placed a proposed constitutional amendment on the 2004 ballot that would overrule the decision. The electorate approved the amendment, reinstating the parental notification law. The next year, the Legislature reenacted the parental notice statute.
In 2012, the Legislature placed another proposed amendment, Amendment 6, on the ballot that would have added a section to Article I of the state constitution that spells out Florida’s privacy rights. The relevant part of Amendment 6 stated: “This constitution may not be interpreted to create broader rights to an abortion than those contained in the United States Constitution.” The amendment would have overruled the Florida Supreme Court’s decisions protecting abortion, as the ballot summary given to voters in the voting booth explained:
This proposed amendment provides that the State Constitution may not be interpreted to create broader rights to an abortion than those contained in the United States Constitution. With respect to abortion, this proposed amendment overrules court decisions which conclude that the right of privacy under Article I, Section 23 of the State Constitution is broader in scope than that of the United States Constitution.
The proposal was the subject of robust public debate. Although proponents argued that Amendment 6 was limited to overruling In re T.W.—an embarrassingly false claim—they conceded that, under their reading of the amendment, it would still protect an adult’s right to abortion. The language of the proposal was also forward-looking. It clearly anticipated that, one day, the U.S. Supreme Court could overrule Roe, which would mean no more state constitutional right to an abortion.
Ultimately, the electorate rejected Amendment 6, with 55 percent of the voters voting against it. This rejection is critical to understanding the post-Dobbs landscape in Florida.
When voters rejected Amendment 6 in 2012, the people of Florida adopted or incorporated the Florida Supreme Court’s prior judicial constructions of the privacy right under the established rule of construction. Put another way: the 1989 and 2003 decisions upholding the right to abortion as embedded in the right to privacy are reaffirmed. Voters could not have been clearer: Our state constitution’s explicit, freestanding, and broadly worded privacy right protects the right to an abortion. And the protection of the right is in no way affected by the federal constitution or how it is interpreted.
What’s more, the people fixed the dimensions of the state right to an abortion to those that existed in 2012. Under the “fixed meaning” canon, Justice Antonin Scalia and Bryan A. Garner wrote in their book Reading Law, “Words must be given the meaning they had when the text was adopted.” Approval of Amendment 6 would have rewritten the privacy right as it relates to abortion. In a very real sense, the rejection of the amendment was a readoption of the privacy right—a readoption that incorporated the Florida Supreme Court’s abortion precedents up until that point in time.
The issue, then, is not whether the Florida Supreme Court can recede from its prior abortion precedents under the now-weakened doctrine of stare decisis. By rejecting Amendment 6 in 2012, Floridians codified that precedent into the constitution’s privacy right. To return to Dobbs, the people decided that “the right [to abortion] is somehow implicit in the constitutional text.” Should the Florida Supreme Court purport to overrule its precedent to hold that the privacy right doesn’t include the right to an abortion, it would be doing nothing less than nullifying the will of the people of the state of Florida.
If anti-abortion activists want to take away Florida’s constitutional right to an abortion, they’ll have to put that question to the people.
