Last year Gov. Ron DeSantis signed the “Reducing Fetal and Infant Mortality Act,” which placed a ban on abortions after the 15-week gestational period.
On Friday, the ACLU argued on behalf of Planned Parenthood of Central and Southwest Florida. It said the ban is unconstitutional because abortion is covered by the state’s constitutional right to privacy, established over 30 years ago.
Florida’s defense attorney, State Solicitor General Henry Whitaker, argued that the state right to privacy covers a narrow scope and only protects residents’ informational right to privacy.
the plain text is paramount.
ACLU attorney, Whitney Leigh White, argued the right includes a wider scope of a resident’s right to decisional privacy.
However, Justice Jamie Grosshans — who was appointed by DeSantis — didn't see the precedent in that argument. Grosshans pointed out that the precedent of privacy established over 30 years ago did expressively not reflect what Florida residents at the time felt about abortion.
“Your brief doesn’t have very many supporting documents to show that was the understanding of any voter in the state in 1980 [that the privacy amendment included a right to abortion]," Grosshans said. "Abortion’s always been a divisive issue. It was divisive in 1980. Why is there not more that emphasizes your view of what that term [right to privacy] meant at the time?”
White disagreed.
"I do think that the historical evidence is consistent with plaintiffs' reading of the privacy clause," she said. "But I would also underscore that this Court has repeatedly emphasized that when considering a question of constitutional interpretation, the plain text is paramount. And that evidence of individual subjective intent of drafters cannot override, otherwise broad plain text."
Whitaker said the ACLU’s argument on abortion, as being protected by the privacy clause in the Florida constitution, does not cover personal decisive privacy.
"They say that it enshrines, basically, it is a charter of noninterference in any kind of a personal decision, which this Court has never interpreted privacy clause to sweep that broadly, and the consequences would be striking."State Solicitor General Henry Whitaker
White's overall argument also pointed to recent history where Floridians voiced their decision on abortion when the decision was put to a vote in 2012.
“Voters were presented with the opportunity to overrule precedent in precisely the way the state is asking the court to do now and to weaken protections for abortion rights under Florida's constitution. And voters rejected that,” she said.
Last year shortly after the 15-week ban went into effect, a Leon County judge agreed the 15-week ban violated the Florida Constitution and blocked its legality with a temporary injunction. However, an appeals court overturned the injunction, leaving the ban in effect.
On Friday, White asked the court for a "preliminary relief" meaning the court could reinstate the injunction, blocking the ban while the litigation continues.
Should the court rule in favor of the state, it would trigger an even stricter 6-week abortion ban 30 days later. That ban, also known as the Heartbeat Protection Act, was signed by DeSantis earlier this year.
