Special Challenges in Florida

Yesterday’s article in the Tampa Tribune points out the special challenges to anti-abortion legislation in Florida, namely, the Florida constitution’s own right to privacy.  Indeed, the Florida Supreme Court has held that Florida’s constitution, which contains an explicit right of privacy, extends the right to an abortion in Florida beyond that provided by the U.S. Constitution.

Unfortunately for the reader, the Tampa Tribune article does not re-print the text of Florida’s right to privacy, which had nothing to do with abortion:

[Article I,] Section 23. Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into his 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.

Nevertheless, the Tampa Tribune is right.  Anti-abortion legislation faces special challenges in Florida.  Not because the Florida constitution says as much; because the Florida Supreme Court has taken a political stance in favor of abortion using the Florida constitution.

In 1989, in In re T.W., 551 So. 2d 1186 (Fla. 1989), the Florida Supreme Court struck down a law requiring minors to obtain parental consent (or secure judicial bypass).  Reasoning that the decision of whether to abort was an intensely intimate decision, the Court decided that the constitutional privacy provision prevented enforcement of the parental consent statute.  Although the former is certainly true–the abortion decision is intimate on numerous levels–it does not follow that the minor’s supposed “right to privacy” extends to everything intimate, especially abortion.

Later, in 2003’s North Florida Women’s Health and Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003),  the Florida Supreme Court also struck a parental notice provision by declining to adopt the U.S. Supreme Court’s undue burden standard (under which parental notice is plainly constitutional).  Instead, the Court in North Florida stuck to the idea that a right to privacy contained abortion rights and even suggested that medical developments and changes in facts could not produce a corresponding change in law, at least, not without the Court’s agreement.

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