In Planned Parenthood of Southwest and Central Florida v. State of Florida, (FL Sup. Ct., April 1, 2024), the Florida Supreme Court in a 6-1 decision receded from (i.e. overruled) its prior decisions that held the Privacy Clause of the Florida Constitution protects the right to abortion. Focusing on the original public meaning of the Privacy Clause that was adopted by Florida voters in 1980, the Court said in part:
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.
The Court thus rejected Planned Parenthood's suit seeking a temporary injunction against enforcement of Florida's 15-week abortion ban. As the dissent points out, however, the decision also has the effect of triggering in 30 days the effectiveness of the state's 6-week Heartbeat Protection Act. That Act, by its terms, was to take effect if the state Supreme Court held that the state Constitution's right to privacy does not protect abortion, if it allowed the 15-week ban to remain in effect or if the Court receded from any of its prior cases protecting abortion.
Justice Sasso filed a concurring opinion focusing on the issue of standing. Justice Labarga filed a dissenting opinion, saying in part:
The majority concludes that the public understanding of the right of privacy did not encompass the right to an abortion. However, the dominance of Roe in the public discourse makes it inconceivable that in 1980, Florida voters did not associate abortion with the right of privacy.
In a second case decided yesterday, the Florida Supreme Court cleared a proposed constitutional amendment protecting pre-viability abortion rights for placement on the November ballot. (See posting on decision.) Orlando Sentinel reports on the two decisions.
