[co-author: Sean Caulfield]
According to statistics published in U.S. News & World Report, Florida has the fifth-highest rate of abortions performed per 1,000 women among all 50 states, and it trails only California and New York in the actual number of abortions performed annually. In an effort to reduce those numbers – and in anticipation of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization – the Florida legislature passed House Bill 5, which Governor Ron DeSantis signed into law on April 14.
House Bill 5 was modeled after the Mississippi abortion law then before the Supreme Court in Dobbs. Specifically, the law shortened the permitted period for abortions from 24 to 15 weeks except in the case of fatal fetal abnormalities, threat to the life of the pregnant mother, or threat of an irreversible physical impairment to a major bodily function of the mother. In the case of any of those exceptions, two doctors must certify in writing that termination of the pregnancy is necessary to save the mother from serious injury or death, or that a fatal fetal abnormality exists. House Bill 5 does not make exceptions for pregnancies caused by rape, incest or human trafficking after the 15-week period has passed. Individuals who violate the law face up to five years in prison, and physicians who do not comply with the new law face fines of up to $10,000 per incident and the potential forfeiture of their medical license.
House Bill 5 was set to become law July 1, 2022, which was after the Supreme Court was expected to issue the Dobbs decision. Given the Supreme Court’s subsequent decision in Dobbs, there appeared to be no federal impediment to its enforcement; however, the day before the law was to go into effect, Leon County (Tallahassee) Circuit Judge John Cooper found in Planned Parenthood of Southwest & Central Florida et al. v. State of Florida, Case No. 2022 CA 000912, that House Bill 5 violated the privacy provision of the Florida Constitution, and he announced his intent to issue a temporary injunction against the law. Because Judge Cooper did not have time to issue a written ruling before the Fourth of July holiday weekend, House Bill 5 actually went into effect on Friday, July 1, 2022, and it remained in effect until the following Tuesday morning (July 5), when Judge Cooper issued his written order temporarily enjoining the law. But the injunction was short-lived; a few hours later, Florida Attorney General Ashley Moody filed an appeal that, under Florida law, automatically stayed Judge Cooper’s injunction and reinstated House Bill 5 as the law governing abortions in Florida. The plaintiffs (Planned Parenthood and various abortion providers in Florida) have made it clear that they intend to seek reinstatement of Judge Cooper’s injunction.
The privacy provision of the Florida Constitution (approved by voters in 1980) states: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” The Florida Supreme Court, in its 1989 decision in In re T.W.,held that this language protected a woman’s decision regarding whether to continue her pregnancy. In subsequent decisions such as N. Fla. Women’s Health and Counseling Services, Inc. v. State and Gainesville Woman Care, LLC v. State, the court struck down legislation establishing parental notification of a minor’s abortion and a 24-hour waiting period, respectively, as violative of the state constitution’s privacy provision. Additionally, the court in Gainesville Woman Care held that laws that implicate the right of privacy (such as laws restricting abortion) are subject to strict scrutiny and presumptively unconstitutional. Under such jurisprudence, the state would have to show that the 15-week ban furthers a compelling state interest in order to pass the strict scrutiny test, which is the highest standard of review used by courts to examine the constitutionality of a government act.
The current litigation over House Bill 5 appears headed on an expedited basis to the Florida Supreme Court, where – similar to Dobbs – the case will be considered by a much more conservative panel of justices than the panel that issued the original decision on abortion rights, including three justices appointed by Governor DeSantis. Indeed, only one of the four justices who agreed with the court’s ruling in Gainesville Woman Care remains on the court today, while two justices who dissented from the decision still remain.
Time will tell whether Florida’s new abortion law survives challenge or existing jurisprudence concerning the right to abortion under the Florida Constitution is reaffirmed. Regardless of what ultimately happens in Florida, the litigation over House Bill 5 serves as an example of litigation over abortion rights and restrictions we may see in other states that recognize privacy rights under their own constitutions.
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