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Florida's new abortion ban will likely face a lawsuit citing a constitutional right to privacy

Florida Supreme Court
Florida Supreme Court

If the U.S. Supreme Court overturns Roe V. Wade, federal protection for the right to an abortion will end and it will be up to individual states to determine whether the procedure is lawful.

In Florida, some legal scholars say a probable challenge to the state's new 15-week abortion ban will almost certainly cite the state constitution's right to privacy amendment.

WUSF's Cathy Carter recently spoke with Stetson University law professor Louis Virelli.

Professor, while the U.S. Supreme Court may argue that the United States Constitution does not specifically mention any right to privacy, the same argument is not available to the Florida Supreme Court. In 1980, citizens amended the constitution to add that explicit right to privacy.

Yes, the amendment is distinct, at least in constitutional law circles because it actually uses the word privacy. It says individuals in Florida have a right to be left alone, or not interfered with by their government. And in 1989, the Florida Supreme Court interpreted that to include within one's right to privacy, a right to terminate a pregnancy, a right to abortion.

But there have not been any new challenges regarding abortion and the right to privacy and the Florida constitution for a couple of decades now. So, could the present court interpret that differently?

So, the position that the current court will take is what is on everybody's mind because as we've learned from the U.S. Supreme Court, courts have the power even if it's not wisely used all the time, to overturn prior decisions or to limit the scope of prior decisions. But amending the Florida constitution is far more common than amending the U.S. Constitution. So, what does that mean? That means that the Florida Supreme Court's role in setting constitutional law is less significant than the U.S. Supreme Court's role because the U.S. Constitution is almost never amended. It hasn't been amended since 1992. The U.S. Supreme Court is really the final arbiter on every issue of constitutional law, not true in a state like Florida. And that is reflected in the history of this privacy amendment as it pertains to abortion in Florida. So, in 1989, the Florida Supreme Court said this privacy provision protects abortion rights. And then twice since then, there have been attempts to amend the Florida constitution to limit its protection of abortion rights, and both of those failed. So, when we talk about Florida's constitutional rights, the role of the Supreme Court is far less dramatic or less critical to setting constitutional law. And in my mind, the fact that the Florida Constitution can be amended more easily by the voters, is a much stronger argument for why the Florida Supreme Court should not overturn its prior precedent and should not change 30 plus years of constitutional law in Florida, especially in light of the fact that the voters have access to the parameters of their own constitution so much more easily than we do at the federal level.

That being said, Governor Ron DeSantis, said he's expecting a legal challenge to the abortion ban, using case law and the right to privacy. He has said ‘we think we can overcome that.’ And he's had the opportunity to appoint more conservative justices.

Well, it's certainly true that the Florida Supreme Court is of a different ideological makeup than it was in 1989. And it's true that after Justice Lawson's recent retirement, the governor will have appointed four of the seven justices. Governor DeSantis, at least taking him at his word, prioritizes abortion as one of the criteria upon which one's qualification for the Florida Supreme Court might be measured. So, we can assume that this Supreme Court will be less friendly to abortion rights. We can't prove it. And I'm not predicting, but we can certainly imagine that that's true. And that's why I wanted to make the point about the different mechanics of Florida constitutional law as opposed to federal constitutional law. The Florida Constitution can be amended every time there's an election, provided enough signatures are put on a proposed amendment and 60% of the public votes for it. If the people want to change their constitution they can in Florida. There's lots of ways to adjust access to abortion in Florida as a constitutional matter and it does not need to come from seven Supreme Court justices.

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