Florida’s privacy clause at the heart of 15-week abortion case set for September hearing

JACKSONVILLE, Fla. — In roughly two months the Florida Supreme Court will hear arguments for and against the state’s 15-week abortion ban.

The outcome will determine the fate of the more restrictive six-week ban passed earlier this year.

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The case revolves around the privacy clause in the Florida Constitution.

Specifically, whether that constitutional right to privacy applies to abortions.

Florida’s privacy clause was adopted by voters in 1980.

“For over 40 years it has been clear that Florida’s constitution guarantees Floridians the fundamental right to decide whether to carry a pregnancy to term,” said Caroline Sacerdote, a staff attorney with the Center for Reproductive Rights, which is representing clinics challenging the 15-week ban.

Sacerdote argued prior court rulings dating back to 1989 linking the right to privacy to abortion were correctly decided.

“The state has argued here, has made the extreme argument here, that the Florida Supreme Court should essentially ignore decades of precedent,” said Sacerdote.

But in its briefs, the State of Florida argues when the privacy clause was put on the ballot by lawmakers, the issue of abortion was rarely discussed.

An analysis of newspaper articles from 1960 to 1980 cited by the state found fewer than ten percent connected abortion rights to language used in the amendment.

“It’s pretty clear that it had nothing to do with protecting the so-called right to access abortion,” said Andrew Shirvell with Florida Voice for the Unborn.

Shirvell explained the state has taken the position the privacy clause was meant to protect informational privacy, rather than decisional privacy, which he argued abortion falls under.

“It’s not what we would understand as a private act where it’s something that would be protected like your social security number, your right to your credit report, that kind of stuff,” said Shirvell.

But Sacerdote countered Florida voters made it clear they believe the right to privacy does include abortion when they rejected a proposed carveout for abortion access in 2012.

“The 2012 rejection of attempts to roll back the constitutional protections underscore the reality that Florida did already protect the right to abortion under the privacy clause,” said Sacerdote.

It’s possible a final ruling may not come until early next year.

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If the court upholds the 15-week law, the more restrictive six-week ban passed earlier this year would automatically go into effect 30 days after the ruling is issued.

Even if the court sides with the state, a citizen initiative currently collecting signatures could render the ruling moot.

Abortion access supporters are seeking to put explicit protection for abortions before voters in 2024.

The initiative currently has more than 22,000 valid signatures, though groups backing the proposal claim to have collected more than 200,000 signatures.

They’ll need to collect at least 891,523 valid signatures by February 1st, 2024 to make the ballot.

To make it into the constitution 60 percent of Florida voters would have to approve the measure.

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