POLICY AND POLITICS

Days before it takes effect, Florida's new abortion limit argued in court

John Kennedy
Capital Bureau | USA TODAY NETWORK – FLORIDA

TALLAHASSEE – Only days before Florida is poised to ban most abortions after 15 weeks of pregnancy, a Leon County judge was asked Monday to block the new law as a violation of the state constitutional right to privacy.

Circuit Judge John Cooper has indicated he expects to rule in the case before Friday, when the new restriction is set to take effect. Planned Parenthood affiliates in Florida and allied organizations sued this month to block the law.

“Abortion is a very common procedure,” Dr. Shelly Tien of Jacksonville said, in testimony Monday before Cooper. “It’s a very safe procedure.”

Tien, among the plaintiffs in the case, is a maternal-fetal medicine specialist who performs abortions with Planned Parenthood of South, East and North Florida. She also travels around the country to provide abortions in regions with limited access.

In mostly party-line votes, Florida’s Republican-controlled House and Senate approved overhauling the state’s abortion law earlier this year. The legislation, HB 5, was signed by Gov. Ron DeSantis in April.

Florida’s law has allowed abortions for up to 24 weeks of pregnancy for most of the decades since the U.S. Supreme Court’s Roe v. Wade decision legalizing the procedure in 1973.

More on lawsuit:Florida's new 15-week abortion ban challenged as violation of state privacy rights

Florida's privacy right central to fight:Florida has a unique right protecting abortion. Its framers designed it that way.

Where abortion stands in Florida:The fall of Roe v. Wade: Five questions about abortion access in Florida

Last week's Roe v. Wade ruling upheld 15-week limit similar to Florida law

The U.S. Supreme Court last Friday overturned Roe v. Wade, stripping away federal constitutional protections for abortion and potentially leading to abortion bans in half the states. In their 6-3 ruling, justices also upheld Mississippi’s 15-week abortion limit, which is identical to the Florida law about to take effect.

But Florida’s constitutional right to privacy, approved overwhelmingly by voters in 1980, adds certain safeguards that Planned Parenthood and others argue should halt the new 15-week ban.

Attorneys for the state, however, questioned Tien who acknowledged that data showed that 96.4% of abortions in Florida in 2019 occurred before the thirteenth week of pregnancy. When Tien was asked to acknowledge that few women seeking abortions would be affected by the new law, Cooper interrupted, also citing the 2019 statistics.

“Sixteen hundred (women) would be” barred from abortions under the 15-week standard, Cooper said. “And all those who have become pregnant by rape would be affected by HB 5.”

The state Supreme Court in 1989 relied on the state’s privacy right in striking down a parental consent law for minors seeking abortion, and the constitutional standard was cited by courts blocking other abortion restrictions in subsequent years.

In mostly party-line votes, Florida’s Republican-controlled House and Senate approved overhauling the state’s abortion law earlier this year. The legislation, HB 5, was signed by Gov. Ron DeSantis in April. Florida’s law has allowed abortions for up to 24 weeks of pregnancy for most of the decades since the U.S. Supreme Court’s Roe v. Wade decision legalizing the procedure in 1973.

But the current, seven-member state Supreme Court, comprised of three DeSantis appointees and all appointed by Republican governors, is viewed as conservative and potentially poised to reinterpret the privacy right, which states “every natural person has the right to be let alone and free from governmental intrusion.”

DeSantis and Republican leaders in the Legislature haven’t spoken about what could happen next in Florida, now that federal justices have given states authority to enact event stricter abortion laws or outright bans.

DeSantis in his comments following the Supreme Court ruling said his focus is on defending the state's new restriction "against state court challenges," hinting he is not eager to call lawmakers back into special session to enact tougher limits.

A Florida Atlantic University poll in May found that 67% of Floridians think abortion should be legal in all or most cases. For now, DeSantis and most Florida lawmakers up for election this year appear inclined to gauge how reaction to the Supreme Court ruling plays across the nation and state.

John Kennedy is a reporter in the USA TODAY Network’s Florida Capital Bureau. He can be reached at jkennedy2@gannett.com, or on Twitter at @JKennedyReport