State again targets privacy clause in fight over Florida abortion ban

Attorney General Ashley Moody’s office contended that clinics and a doctor have not shown 'irreparable harm' needed to temporarily block the law.

A woman, who chose to remain anonymous, talks to her doctor during an abortion consultation at a Planned Parenthood Abortion Clinic in Jacksonville on July 20, 2022.

A woman, who chose to remain anonymous, talks to her doctor during an abortion consultation at a Planned Parenthood Abortion Clinic in Jacksonville on July 20, 2022. Photo by CHANDAN KHANNA/AFP via Getty Images

Reiterating its stance that a privacy clause in the Florida Constitution does not protect abortion rights, Attorney General Ashley Moody’s office Thursday fired back at an attempt to halt a new law that prevents abortions after 15 weeks of pregnancy.

Lawyers for the state filed a 40-page document urging the Florida Supreme Court to reject an emergency motion by seven abortion clinics and a doctor that would effectively put the 15-week law on hold while a legal battle plays out.

Echoing a decision by a panel of the 1st District Court of Appeal, Moody’s office contended that the clinics and the doctor have not shown “irreparable harm” needed to temporarily block the law. But the document also disputed arguments that the 15-week limit violates a privacy clause in the state Constitution.

Moody’s office also took the position on the privacy clause in a Sept. 6 court filing. If justices ultimately agree, they would reverse more than three decades of legal precedent that have helped protect abortion rights in the state.

“Florida’s Privacy Clause creates a right ‘to be let alone and free from governmental intrusion into the person’s private life,’” Thursday’s filing said. “That language is naturally read to limit governmental snooping and information-gathering — but not to establish a liberty to destroy unborn (or any other) life.”

Lawyers for the clinics and the doctor, Shelly Hsiao-Ying Tien, filed the emergency motion Aug. 31 seeking to put on hold a 1st District Court of Appeal ruling that allowed the 15-week law to remain in effect. The privacy clause plays a key role in their arguments that the law (HB 5) should be blocked.

“This (Supreme) Court has long held, and consistently reaffirmed, that the Florida Constitution’s Privacy Clause protects the right to abortion prior to viability,” the emergency motion said. “This court has also instructed that Florida’s constitutional right to privacy ‘is much broader in scope than that of the federal Constitution.’ And this court has made clear that any law that implicates the fundamental right to privacy — as HB 5 unquestionably does — is presumptively unconstitutional and can be upheld only if the state carries a heavy burden to prove that the law furthers a compelling state interest in the least restrictive manner.”

The state’s filing Thursday was the latest move in a flurry of legal arguments and maneuvering about the law, which Gov. Ron DeSantis signed April 14. The law took effect July 1.

The clinics and the doctor filed a lawsuit June 1, and Leon County Circuit Judge John Cooper on July 5 issued a temporary injunction, ruling that the law violated the Constitution’s privacy clause. The state immediately appealed, which, under legal rules, placed an automatic stay on Cooper’s ruling — keeping the 15-week limit in effect.

A panel of the 1st District Court of Appeal rejected a request to vacate the stay and later overturned the temporary injunction. Attorneys for the clinics and the doctor asked the Supreme Court to vacate the stay and reject the appeals court’s decision on the underlying temporary injunction.

As part of that, they filed the Aug. 31 emergency motion seeking to put on hold the appeals court’s decision on the temporary injunction.

A majority of the appeals-court panel ruled against the clinics and the doctor because it said they could not show that the law would cause “irreparable harm” needed for a temporary injunction. In a July 21 decision, appeals-court Judge Brad Thomas wrote that the plaintiffs’ “claims are based on the allegation that they are in doubt regarding their ability to provide abortions, not that they themselves may be prohibited from obtaining an abortion after a certain time.”

Lawyers for the clinics and the doctor dispute the appellate court’s conclusion on irreparable harm. But Moody’s office also has tried to broaden the case to address the issue of the privacy clause.

Conservatives have long criticized a 1989 Florida Supreme Court decision that used the privacy clause to protect abortion rights. The battle over the 15-week law also comes after the U.S. Supreme Court in June overturned the landmark Roe v. Wade abortion-rights decision — a ruling that Moody’s office cited in the document filed Thursday.

“To begin, this (Florida Supreme) Court is likely to hold that the Privacy Clause of the Florida Constitution does not limit the Legislature from regulating abortion,” Moody’s office argued. “As the U.S. Supreme Court recently explained in overruling Roe v. Wade, a right to abortion is not contained in any of the ‘broadly framed’ rights the U.S. Supreme Court’s pre-Roe precedents had established — whether framed as a ‘right to privacy,’ or as a ‘freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy.’

"That reasoning obliterates the foundation of this (Florida Supreme) Court’s own abortion precedents, which heavily relied on the now-abrogated Roe v. Wade and its progeny in establishing a right to abortion under the Florida Constitution.”

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