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Florida Supreme Court Heard Oral Arguments in 15-Week Abortion Ban

by | Sep 8, 2023

By Liberty Counsel

The Florida Supreme Court heard oral arguments today in Planned Parenthood of Southwest and Central Florida, et al., v. State of Florida, et al., regarding the 15-week abortion ban which prohibits all abortions after 15 weeks of gestation. 

On April 14, 2022, Governor Ron DeSantis signed HB 5, known as the “Reducing Fetal and Infant Mortality Act,” to protect the lives of Florida’s most vulnerable by prohibiting all abortions after 15 weeks of gestation. Florida Planned Parenthood affiliates and other independent abortionists sued the state on June 1, 2022. The complaint alleges that the 15-week ban violates a right to privacy within the Florida Constitution.

Florida Solicitor General Henry Whitaker argued on behalf of the state and Whitney White, attorney with the American Civil Liberties Union, argued on behalf of the plaintiffs. 

Regarding the ACLU’s argument that the Florida privacy amendment should include abortion, Justice Jamie Grosshans addressed White, “Your brief doesn’t have very many supporting documents to show that was the understanding of any voter in the state in 1980 [that the privacy amendment included a right to abortion]. Abortion’s always been a divisive issue. It was divisive in 1980. Why is there not more that emphasizes your view of what that term [right to privacy] meant at the time?” 

Justice John Couriel added: “The plain text has an original public meaning…if the original public meaning of that text included abortion you would expect to see positions from Planned Parenthood and National Right to Life debating each other about it in 1980 and yet we don’t really see that. How do you explain that absence?” 

White responded: “There could have been a general acceptance that Roe was the law of the land at the time.” 

Chief Justice Carlos Muñiz stated: “We’ve had in our country kind of a 50-year debate over this. There have been changes in scientific information… It doesn’t seem like the people of Florida had an actual debate over [abortion] when this was adopted… When we’re talking about something as fundamental as the possibility of protecting human life versus whatever the autonomy interest might be, how should our court sort of look at our role in overriding a legislative judgement on compelling interest? This is a fifty-year reflection by our society, by our state, and the people’s elective representatives believe that there is a compelling interest in protecting human life. Why should we as a court not defer to that? We also have in the Florida Constitution ‘all natural persons are equal before the law and have inalienable rights including the right to enjoy and defend life.’” 

White responded: “If this Court doesn’t step in now, there is an even more dangerous six-week ban waiting in the wings.” 

Solicitor General Whitaker stated: “Abortion is one of the most controversial issues in our society today… It is unimaginable given that controversy that it [the privacy amendment] would’ve included abortion given the mere absence of references in the public debate over the question.” 

Justice Grosshans responded: “If we as a court adopt your legal approach to this amendment it affects dozens of cases outside of the abortion context, dozens of other subjects that relate I think more to a decisional autonomy than to informational. That is 30 years of precedent completely undone.” 

Whitaker stated: “They do not provide a limiting principle to distinguish abortion from infanticide, from euthanasia, from spousal abuse. Those all involve personal decisions that I suppose the government could be said to be interfering with in some sense when the legislature takes action to remedy choices that harm others. …The continuing vitality of this Court’s precedents on abortion is an issue that cries out for resolution by this Court on the merits.” 

Whitaker added. “The legislature weighed and balanced those concerns [the concerns of women] against the interest in protecting human life…. The State has a compelling interest at all stages of pregnancy in preserving life. And whatever you think about the status of an unborn life at any particular stage of pregnancy it is a life in some sense. And it is unquestionably extinguished by the abortion decision. The legislature was entitled to take that into account and legislate.” 

Chief Justice Muniz responded to White’s rebuttal: “You’re asking us to essentially take a whole class of human beings and put them outside of the protection of the law essentially in the sense that if the legislature wants to protect those human beings, they are precluded by the constitution of Florida from doing that. Should it matter to us that the entire foundation of the asserted right here, essentially the Supreme Court created it in the first place, has now said that it was egregiously wrong from day one? Should that matter to us?” 

Liberty Counsel filed an amicus brief to the state’s High Court 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.”   

In addition, Liberty Counsel Action 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., requesting that the In re T.W. decisionissued by an activist court in 1989 be overturned and the original intent of Article I, Section 23 be restored so as not to recognize a right to kill preborn children by abortion. Before the Florida Supreme Court is a 15-week abortion ban passed by the legislature in 2022. Like the 15-week abortion ban that went to the U.S. Supreme Court and resulted in the overturning of Roe v. Wade and Planned Parenthood v. Casey, the Florida case could follow a similar result. 

If the state’s High Court rules in favor of the 15-week ban, then the “Heartbeat Protection Act,” which protects unborn children in Florida beyond six weeks of pregnancy, will go into effect. On April 13, 2023, Governor Ron DeSantis signed SB 300 into law but it has not gone into effect due to the ongoing legal challenge to the existing 15-week ban. 

The “Heartbeat Protection Act” will take effect 30 days after the Florida Supreme Court either holds that the right to privacy enshrined in Article I, Section 23 of the State Constitution does not include a right to abortion; upholds the 15-week abortion ban signed into law by DeSantis in April 2022; or if the Court overturns the state abortion case precedent in the In re T.W. decision. 

Liberty Counsel’s Founder and Chairman Mat Staver said, “We trust that the Florida Supreme Court will establish this as a state that values unborn life according to the state Constitution. This Court should reject the former days of judicial activism and retether the Court to the Constitution.”     

Categories: Judicial