Florida Supreme Court Overrules Cases Holding State Constitution Protects Abortion

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.

British Columbia Court Says Jehovah's Witness Elders Must Submit Confidential Documents to Privacy Commissioner

In Vabuolas v. British Columbia (Information and Privacy Commissioner), (BC Sup. Ct., Jan. 8, 2024), the British Columbia Supreme Court upheld an order issued by the B.C. Office of the Information and Privacy Commissioner over the objections raised by two elders of the Jehovah's Witness congregations. Petitioners claimed that the Order violated their rights under Canada's Charter of Rights and Freedoms. As the court explained:

Two former members of the Jehovah's Witnesses each sought disclosure from their former congregations of all records that include their personal information. The elders of the congregations refused, arguing that disclosure of confidential religious notes would be contrary to their religious beliefs....

[Under B.C. Personal Information Protection Act] Where an individual has made an access request to an organization for a copy of personal information about the individual held by the organization, and the individual is dissatisfied with the organization’s response to the access request, they may ask the Commissioner to conduct a review. This is what happened in this case....

Of particular concern to the petitioners is that the groups of elders who meet to determine membership must be able to discuss matters in confidence and without fear of having their confidential discussions disclosed. The petitioners are concerned that if the elders’ confidential communications are disclosed, they may be further disseminated for the purposes of mocking either the petitioners or elders, causing unnecessary embarrassment....

I am not satisfied that disclosure of the Disputed Records by the congregational elders to the Commissioner for review for the purpose of determining whether disclosure to the Applicants will be required would preclude the elders from continuing to follow their religious practices when weighing the rights of individuals to control over their personal information on the one hand and the religious freedom of the elders on the other. The Production Order represents a balancing of the competing interests, and I conclude that the infringement on the congregational elders’ religious freedoms that results from the Production Order is proportionate....

I conclude that while ss. 23(1)(a) and 38(1)(b) of PIPA infringe the petitioners’ rights under s. 2(a) of the Charter, those rights are limited in a manner that is reasonably justified in a free and democratic society.

CBC News reports on the decision.

Court Preliminarily Enjoins Montana's Ban on Transgender Treatments for Minors

 In Van Garderen v. State of Montana, (MT Dist. Ct., Sept. 27, 2023), a Montana trial court granted a preliminary injunction against enforcement of SB 99, the state's ban on surgical and hormonal treatments for minors suffering from gender dysphoria.  It concluded that the law likely violates the Equal Protection and Privacy provisions of the Montana Constitution.  The court said in part:

The Court finds that SB 99 likely violates Montana's Equal Protection Clause because it classifies based on transgender status—making it a sex-based classification—and because it infringes on fundamental rights, subjecting it to strict scrutiny. The Court finds that SB 99 likely does not survive strict scrutiny because it does not serve its purported compelling governmental interest of protecting minor Montanans from pressure to receive harmful medical treatments. Alternatively, the Court finds that SB 99 is unlikely to survive any level of constitutional review. The Court also finds that SB 99 likely violates Plaintiffs’ right to privacy under Montana’s Constitution because the Court does not find that the treatments proscribed by SB 99 constituted “medically-acknowledged, bonafide health risk[s][,]” and because, again, SB 99 likely cannot survive strict scrutiny.....

LawDork reports at greater length on the decision. [Thanks to Scott Mange for the lead.] 

Alabama Law Protects Identity of Donors, Supporters, Volunteers and Members of Non-Profits

Yesterday, Alabama Governor Kay Ivey signed S-59, The Personal Privacy Protection Act (full text). The new law prohibits any governmental agency from requiring disclosure of, or from releasing information about, the identity any member. supporter, volunteer, or donor of a non-profit organization.  It also bars requiring any current or prospective contractor or grantee to disclose non-profits to which it has donated or provided support. The Act contains a number of exceptions, including required disclosures under campaign finance laws.  Indiana has recently enacted a similar statute. (See prior posting.) ADF issued a press release announcing the signing of the law.

Indiana Governor Signs Bill Protecting Privacy of Donors and Members of Nonprofits

On May 4, Indiana Governor Eric Holcomb signed House Bill 1212 (full text) which protects the privacy of information about the identity of members, supporters, volunteers and donors to nonprofit organizations. Among other things, under the new law governmental agencies and governmental subdivisions may not require nonprofits to furnish lists of donors, members, volunteers or supporters, may not release information of that sort that is in their possession, nor require a prospective contractor or grantee to disclose nonprofits to which it has donated.  The new law has a number of exceptions, including disclosures required by campaign finance and lobbying disclosure laws. ADF issued a press release announcing the signing of the bill.

South Carolina Supreme Court Invalidates Fetal Heartbeat Abortion Ban

In Planned Parenthood South Atlantic v. State of South Carolina, (SC Sup. Ct., Jan. 5, 2023), the South Carolina Supreme Court in a 3-2 decision held that the state's Fetal Heartbeat and Protection from Abortion Act violates a woman's right to privacy protected by Art. I, Sec. 10 of the South Carolina Constitution. Each Justice wrote a separate opinion in the case. The opinions span 147 pages.  Justice Hearn, holding the law unconstitutional, said in part:

We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman's right to privacy. While this right is not absolute, and must be balanced against the State's interest in protecting unborn life, this Act, which severely limits—and in many instances completely forecloses—abortion, is an unreasonable restriction upon a woman's right to privacy and is therefore unconstitutional....

The State unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision, but any such limitation must be reasonable and it must be meaningful in that the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy. Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution's prohibition against unreasonable invasions of privacy.

Chief Justice Beatty concurred in a separate opinion, saying in part:

Although our determination turns on the right to privacy, I believe the Act is also void ab initio and denies state constitutional rights to equal protection, procedural due process, and substantive due process. Therefore, the Act violates our state constitution beyond a reasonable doubt. For the foregoing reasons, I concur with Justice Hearn's lead opinion regarding the right to privacy, and I write separately to address all of Petitioners' issues because our decision today will likely not be the final resolution of the quandary....

When life begins is a theoretical and religious question upon which there is no universal agreement among various religious faiths. In fact, because there are differing views on abortion and when life begins among religious faiths, challenges are already being made to some abortion laws on the basis they violate religious freedom by elevating one faith's views over the views of others. The question of when life begins is distinguishable from the constitutional questions raised here regarding whether a woman has the right to make her own medical decisions regarding her reproductive health (in consultation with her medical provider and based on scientific evidence). At its core, the question the Court faces today is can the government—by force of law—force a woman to give birth without her consent? As will be discussed, for a reasonable period of time, a woman, rather than the government, retains this important right to choose whether to become a mother.

Justice Few filed an opinion concurring only in the result, saying in part:

Political questions surrounding abortion have produced as much impassioned disagreement as any issue of our time. When those political questions intersect with questions of law, advocates on both sides of the political questions seem to believe that the more fervently they hold their political views, the more likely those views will become someone else's legal views. We have been asked in this case to ignore well-established principles of law in order to uphold the Fetal Heartbeat Act, and to create new and novel principles of law to strike down the Act. The parties who made these requests derive their positions not from sound legal reasoning, but from fervent political advocacy. These well-intentioned parties act on the basis of their politics. The Court must act on the basis of law. The article I, section 10 prohibition on "unreasonable invasions of privacy" is a principle of law. The six-week ban in the Fetal Heartbeat Act violates the provision because—as a matter of law—it is an unreasonable intrusion into a pregnant woman's right of privacy. The Fetal Heartbeat Act is, therefore, unconstitutional.

Justice Kittredge filed a dissenting opinion, saying in part:

Petitioners' due process claim fails. Abortion is not "deeply rooted" in our state's history, and it could not be reasonably suggested that abortion is "implicit in the concept of ordered liberty." To the contrary, it is the regulation and restriction of abortion that is deeply rooted in our state's history....

Justice Few and I have a fundamental difference of opinion on the reach and meaning of the state constitutional privacy provision. Justice Few views the privacy provision expansively; I view the privacy provision in line with its understood meaning at the time it was adopted, along with caselaw interpreting the provision. Yet Justice Few and I agree on a person's general privacy interest in his or her medical autonomy. It is the source of that privacy interest where we part company. Justice Few finds the source of the privacy interest in article I, section 10—the privacy provision. I believe this privacy interest in healthcare decisions is embedded in the due process concept of liberty from our nation's and state's foundings. That is why I find the source of that interest in article I, section 3—due process. This position aligns with my view that the most basic forms of privacy arise from natural law....

Justice James filed a dissenting opinion, agreeing in part with Justice Kittredge, saying in part:

Like Justice Kittredge, I would uphold the Act. However, I disagree with Justice Kittredge on one point: I would hold the privacy provision in article I, section 10 provides citizens with heightened Fourth Amendment protections, especially protection from unreasonable law enforcement use of electronic devices to search and seize information and communications. It goes no further.

CNN reports on the decision.

Suit Over Teaching 1st Graders About Transgender Topics Moves Forward

In Tatel v. Mt. Lebanon School District, (WD PA, Oct. 27, 2022), a Pennsylvania federal district court allowed parents of first graders to move ahead with their due process, equal protection and free exercise claims against a teacher who has a transgender child for teaching their students about transgender topics over parental objections. It also permitted plaintiffs to move ahead against school administrators, the school board and the school district   The court summarized its decision, saying in part:

[T]he factual allegations in the complaint present plausible claims that Parents have fundamental constitutional rights (pursuant to Substantive and Procedural Due Process under the Fourteenth Amendment and the First Amendment Free Exercise clause) that were violated by a public school teacher, over the Parents’ objections and without notice and opt out rights, when the teacher promoted her own agenda to their first grade children about gender dysphoria and transgender transitioning, including showing videos or reading books about those topics, telling the children that the Parents may be wrong about the child’s gender, telling a child she would never lie (implying the parents may be lying about the child’s identity), telling the children to keep the discussions about transgender topics secret, and grooming a student to become a transgender child. The Equal Protection and familial privacy claims asserted by the Plaintiffs are plausible, but will benefit from further factual development. 

A claim based on the children's privacy rights was dismissed without prejudice.

Georgia Abortion Law Challenged Under State Constitution

After the U.S. 11th Circuit Court of Appeals last week upheld Georgia's abortion laws against federal constitutional challenges, suit was filed Monday in a Georgia state trial court challenging Georgia's 6-week abortion ban under Georgia's state constitution. The complaint (full text) in Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., filed 7/26/2022) alleges in part:

91. Because federal constitutional law clearly prohibited pre-viability abortion bans when the Six-Week Ban was enacted in 2019, the Act is void ab initio and unenforceable....

92. By banning abortion from the earliest weeks of pregnancy and thus forcing pregnancy and childbirth upon countless Georgians, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy guaranteed by various provisions of the Georgia Constitution ... and (b) equal protection....

93. By specifically excluding pregnant Georgians experiencing an acute psychiatric emergency from H.B. 481’s “medical emergency” exception, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy....

94. By requiring Georgians pregnant as a result of rape/incest to disclose their assault to law enforcement as a condition of ending the pregnancy, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy ... and (b) equal protection....

95. By allowing district attorneys to access abortion patients’ personal medical records without due process protections, the Records Access Provision violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy...

ACLU issued a press release announcing the filing of the lawsuit.

Kentucky Abortion Bans Violate State Constitution

In EMW Women's Surgical Center v. Cameron, (KY Cir. Ct., July 22, 2022), a Kentucky state trial court issued a temporary injunction against enforcement of two statutes restricting abortions-- a six-week fetal heartbeat ban, and a ban on almost all abortions triggered by the overruling of Roe v. Wade. Relying on provisions of the Kentucky state constitution, the court found that the Trigger Ban constituted an unconstitutional delegation of legislative authority to the U.S. Supreme Court, and also concluded that the law is unconstitutionally vague. the court concluded that the six-week ban violates provisions of the Kentucky constitution protecting the right to privacy, equal protection and the prohibition on the establishment of religion and the protection of the free exercise of religion. The court said in part:

Defendants' witnesses ... argue that life begins at the very moment of fertilization and as such is entitled to full constitutional protection at that point. However, this is a distinctly Christian and Catholic belief. Other faiths hold a wide variety of views on when life begins and at what point a fetus should be recognized as an independent human being....

The General Assembly is not permitted to single out and endorse the doctrine of a favored faith for preferred treatment.... There is nothing in our laws or history that allows for such theocratic based policymaking.

AP reports on the decision.

UPDATE: A Kentucky appellate court lifted the injunction while the case is on appeal, and the Kentucky Supreme Court refused to reinstate the injunction but set the case for argument on Nov. 15. An ACLU press release reports on these developments.

Minnesota Abortion Restrictions Struck Down Under State Constitution

In Doe v. State of Minnesota, (MN Dist. Ct., July 11, 2022), a Minnesota state trial court judge in a 140-page opinion held that a series of state abortion restrictions violate various provisions in the Minnesota state Constitution. The court summarized its conclusions:

[T]his court concludes that Minnesota abortion laws relating to mandated physician care, hospitalization, criminalization, parental notification, and informed consent are unconstitutional. 

These abortion laws violate the right to privacy because they infringe upon the fundamental right under the Minnesota Constitution to access abortion care and do not withstand strict scrutiny. The parental notification law violates the guarantee of equal protection for the same reasons. The informed consent law also violates the right to free speech under the Minnesota Constitution, because it is misleading and confusing, and does not withstand intermediate scrutiny. Accordingly, this court is declaring those laws unconstitutional and permanently enjoining their enforcement.

Courthouse News Service reports on the decision.

Synagogue Sues In Challenge To Florida's Restrictive Abortion Law

Suit was filed last week in a Florida state trial court by a Palm Beach County synagogue challenging Florida's recently enacted 15-week abortion ban. The complaint (full text) in Generation to Generation, Inc. v. Florida, (FL Cir. Ct., filed 6/10/2022) contends that the law violates the free exercise, establishment, right to privacy, due process and equal protection provisions of the Florida Constitution.  The complaint alleges in part:

40. Some women, such as the members, congregants, supporters of Plaintiff L’Dor Va-Dor and their families have an abortion because it is required by their religious faith.  For Jews, all life is precious and thus the decision to bring new life into the world is not taken lightly or determined by state fiat.  In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act.  As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.....

71. The Jewish people have often borne the brunt of the horrors that occur when the power of Christianity has merged with the power of the state.  The result has been Inquisitions, Crusades, ghettoes and pogroms for the Jews and the eventual loss of freedom for everyone else.... 

72.  The architects of the Act have taken a first step towards the dismantling of that wall and returning the state of Florida and our nation back to a time when the merger of Christianity and government produced genocide, slavery, misogyny, and the denial of equal rights and in many cases, any rights at all to those who did not share the gender, race or religion of those in power.

Jews for a Secular Democracy issued a press release announcing the filing of the lawsuit.

Soap Opera Star Sues ABC Over Religious Exemption To Vaccine Mandate

Litigation over religious exemptions from COVID vaccine mandates continues to grow. Yesterday, Ingo Rademacher-- well known for portraying Jasper Jacks on the ABC soap opera General Hospital-- sued in a California state court after his request for a religious exemption from ABC's vaccine requirement was denied. He argues that the expansive right to privacy afforded by the California state constitution protects both informational privacy and bodily integrity, and can be enforced against private parties. The complaint (full text) in Rademacher v. American Broadcasting Companies, Inc., (CA Super. Ct., filed 12/13/2021) contends:

ABC does not have the authority to force a medical treatment on its employees against their will. Even if it did, it must offer religious exemptions to the forced treatment to anyone who requests one. It cannot discriminate among religions and cannot second-guess the sincerity of one's religious beliefs....

Deadline reports on the lawsuit.

European Court Says Tabloid Coverage Of Deceased Priest Violated Privacy Rights

In M.L. v. Slovenia, (ECHR, Oct. 14, 2021), the European Court of Human Rights held that Article 8 (Respect for private life) of the European Convention on Human Rights was violated when Slovenian courts rejected claims that the mother of a deceased Roman Catholic priest brought against three newspapers. The son had been convicted in 1999 and 2002 on charges growing out of homosexual conduct. The son died in 2006, apparently of suicide. In 2008, three tabloid newspapers published sensationalized stories about the son's life. The Court said in part:

[I]t was crucial in the present case that the domestic courts make a careful assessment of the presence and level of public interest in the publishing of the information in question, and that the domestic courts strike a balance between any such public interest and the applicant’s individual interests....

[T]he domestic courts failed to carry out a balancing exercise between the applicant’s right to private life and the newspaper publishers’ freedom of expression in conformity with the criteria laid down in the Court’s case-law.

The Court awarded damages of 5000 Euros plus costs.  The Spectator reports on the decision.