While the nation is waiting to see what the U.S. Supreme Court’s final decision will be in the case of Dobbs v. Jackson Women’s Health Organization, which could result in the overturning of Roe v. Wade, the state of Florida has taken the proactive move of passing new restrictions on abortion.
The law, which Gov. Ron DeSantis signed on April 14, does not allow for any abortions after 15 weeks of pregnancy, and there are not exceptions for rape or incest.
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The ban is scheduled to take effect on July 1, however, it is now facing a challenge in court from the ACLU, which could even if the U.S. Supreme Court decides to strike down Roe.
Caroline Mala Corbin, a constitutional law professor at the University of Miami, believes the 15-week ban will run into a constitutional challenge.
“Florida’s 15-week ban is in violation of Florida’s own constitution,” she said.
Corbin said the state’s constitution has an “explicit right to privacy” in its text, which the Florida Supreme Court has previously ruled extends to a woman’s right to an abortion.
“In the text of the Florida constitution is a provision that says that the government cannot intrude on the Florida citizen’s right to privacy and the Florida Supreme Court has interpreted this language to cover abortion,” she said.
The Florida Supreme Court first ruled on the issue in October 1989 in the case of a law requiring teenage girls to get a parent’s consent before having an abortion.
According to a Washington Post article at the time, the opinion handed down by the court, in a 6-to-1 decision, cited a 1980 amendment to the state constitution providing that “every natural person has the right to be let alone and free from governmental intrusion into (their) private life” in its ruling.
The clause can be found in Section 23 of the state constitution. It reads, in full:
“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. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”
“So the Florida law — even if it doesn’t violate the U.S. Constitution, will currently violate the Florida constitution — and so that will have to be worked out in the court,” Corbin said.
The 1989 ruling said that the imposition of restrictions on abortion constituted an intrusion into a woman’s personal life.
‘’Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy,’’ the opinion said. ‘’We can conceive of few more personal or private decisions concerning one’s body that one can make in a lifetime, except perhaps the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment.’’
Even the dissenting opinion found that the privacy clause applied to a woman’s right to an abortion. The dissent only took issue with how the court defined “viability,” believing it to extend beyond the standard set out in the 1973 Roe ruling from the U.S. Supreme Court.
“I wholeheartedly concur that Florida’s express constitutional right of privacy, article I, section 23, Florida Constitution, is implicated in this case,” wrote Justice Parker Lee McDonald in his dissent. “Specifically, I note that the privacy provision was added to the Florida Constitution by amendment in 1980, well after the decision of the United States Supreme Court in Roe v. Wade, It can therefore be presumed that the public was aware that the right to an abortion was included under the federal constitutional right of privacy and would therefore certainly be covered by the Florida privacy amendment.”
The U.S. Supreme Court is expected to make a ruling in the Dobbs case sometime in late June or early July.
You can read the HB 5, the 15-week ban signed into law by the governor, below: