Planned Parenthood v. State

Decision

In a 6-1 decision, the majority upheld the ruling from the First District Court of Appeal that refused a temporary injunction to prevent HB5 from taking effect. HB5 bans most abortions after 15 weeks. The ruling reads:

"… we conclude there is no basis under the Privacy Clause to invalidate the statute. In so doing, we recede from our prior decisions… that the Privacy Clause guaranteed the right to receive an abortion through the end of the second trimester."

The majority determined that there is not a conflict between the existing Privacy Clause (the right to be free of governmental intrusion into private life) and a recently amended statute reducing the time a physician can perform an abortion. In doing so, they overturned many decisions previously made by the Florida Supreme Court under different Justices. They stated that they didn’t consider “serious moral, ethical and policy issues” related to abortion.

The majority reviewed the first case that the Florida Supreme Court explicitly ruled that the Privacy Clause included a right to abortion, In re T.W. (1989) (“T.W.”). They disagreed with the 1989 Court’s thought process and end result. The majority say the 1989 Court used the Roe v. Wade opinion's definition of privacy and did not analyze the meaning of the words in the Privacy Clause. The majority also did not like that the 1989 Court did not defer to the Legislature and that they did not weigh public criticism of the controversial Roe decision.

They no longer uphold T.W., and Florida’s Privacy Clause doesn’t explicitly mention abortion. The majority used the supremacy-of-text principle. Dictionaries from 1933, 1969, and 1982 were used to determine the meaning of the words and phrases of the Clause (“[right] to be let alone and free from governmental intrusion into the person’s private life.”). In considering the definition of privacy, they argue the decision may be made alone, but the procedure itself includes “the presence and intrusion of others”, as well as a fetus.

They determined a voter in 1980 would not conclude the Privacy Clause included protections for abortion.

• In Roe, it is explicitly stated that the choice to have an abortion was private. The majority agreed with Planned Parenthood that Roe's definition of privacy would have had some effect on the public’s understanding of privacy when they voted for the Privacy Clause. But it wasn't a big consideration for them because Roe was eventually overturned.
• Before the Privacy Clause existed, the “right to be let alone” was not used as a pro-choice argument in Florida. In their view, that phrase does not allow a person to inflict harm on “herself or others”. They argue that aside from abortion, the Privacy Clause did not allow for it either.
• The Legislature was the group that added the Privacy Clause to the ballot. The majority argues that the public would not think the Legislature intended for it to effect abortion rights because that Legislature had recently passed several laws restricting access to abortion. Recent proposals specifically addressing abortion rights did not make it onto the ballot.
• The majority believes it was clear that the Privacy Clause was created to protect against governmental surveillance and society’s dependence on technology. Abortion was not the focus of the Legislative or public discussion about the Privacy Clause.
  

The majority believes that HB5, the new law in question, is Constitutional. This conflicts with precedent, especially with T.W. They overturn that precedent, arguing that the 1989 Court should have presumed the law was Constitutional. They said the 1989 Court overstepped when they extended the protections of the Privacy Clause to abortion.

Having found the new law to be Constitutional, the majority does not believe Planned Parenthood will be successful in its claim that the new law is unconstitutional. They agree with the First District Court of Appeal that the temporary induction should not be granted.

Concur: Justice Sasso

"I write separately to explain why I believe it is appropriate to reach that decision considering the standing arguments raised…"

Justice Sasso concurs with the majority opinion but wanted to add some arguments of her own. She sees inconsistencies in the previous rulings of the Florida Supreme Court. The right to sue has different requirements at the federal and state levels. The Florida Supreme Court has sometimes used the federal requirements in their rulings and has sometimes used Florida rules.

In this case, the State argued Planned Parenthood didn’t have the right to sue over HB5. The State backed down on that argument, but then later reasserted their claim. Both the State and Planned Parenthood were using the federal rules to argue if Planned Parenthood had the right to sue.

In this instance, Sasso is content with allowing Planned Parenthood to sue based on the State backing down on their argument, but in future Sasso wants the Florida Supreme Court to define the requirements for the right to sue in Florida and the rules surrounding them “(spoiler alert—it is not the Federal Constitution)”. In order to define these things, a case will need to be presented that argues these issues. Sasso encourages this in the future.

Dissent: Justice Labarga

"… I lament that what the majority has done today supplants Florida voter’s understanding—then and now—that the right of privacy includes the right to an abortion."

Justice Labarga argues that changes to U.S. law (like overturning Roe) would then defer to state laws, and would not require any changes to long established Florida law. ‍

He argues that over 100 years ago, the right of privacy was established as the right “to be let alone”. Early legal scholars recognized that the right to privacy “would evolve over time—and it did”. He notes that many legal changes have expanded privacy rights over time. He does acknowledge Roe vs. Wade’s decision explicitly stated the right of privacy included abortion in federal law. But he argues that before Roe, decisional autonomy was determined to be part of privacy in federal law by Griswold v. Connecticut (1965). Griswold said forbidding married couples from using contraceptives violated privacy.

Labarga argues that abortion is a private matter. The “others” that are present are physicians and medical personnel that Florida requires for an abortion. Medical matters, with rare exceptions, are protected with patient confidentiality. He also points out in Griswold, the physician’s role in prescribing contraceptives was explicitly stated and did not override patient privacy rights. He is concerned that the majority’s opinion will open the door to weaken medical-related privacy protections.

He argues that Roe played a major role in the public’s understanding of privacy when the Privacy Clause was voted on in 1980. Roe had “fundamentally changed the landscape of abortion rights on a national scale” and popularized the understanding that abortion fell under privacy just seven years earlier.  Media outlets of the time covered Roe extensively. National and Florida newspapers reported on the front page that Roe was based on “a right of privacy” and The CBS News with Walter Cronkite (+20 million viewers) reported that the “justices made abortion largely a private matter”. In the seven years between Roe and the vote on the Privacy Clause in Florida, Roe remained a frequent issue with media coverage. Abortion laws in Florida (and other states) were struck down in court based on federal privacy rights. He fully believes whether or not an American in 1980 agreed with Roe, they would have understood that legally, abortion was included in privacy rights.

Justice Labarga does not believe the lack of abortion debate ahead of the 1980 Privacy Clause vote indicates that the public would not think that abortion was included. The knowledge that abortion was included in the right to privacy was so well known at the time, it would have been understood without any need to re-debate the already established legal meaning of privacy.

Justice Labarga argues that there are no grounds to overturn In re T.W. Rather than relying on Roe, he says that the decision relied “squarely” on Florida’s privacy laws. The later-overturned Roe decision was not a determining factor in the ruling. He quotes T.W.: “We expressly decide this case on state law grounds and cite federal precedent only to the extent that it illuminates Florida law.”

He also notes that the 1989 Court had no obligation to examine Roe or its criticism, because it was the current law.‍

He also recorded immediate concerns beyond HB5. HB5 bans most abortions after 15 weeks of pregnancy. He notes that the majority’s decision will allow a different law, known as the Heartbeat Protection Act, to take effect within 30 days. This law bans abortions after 6 weeks of pregnancy.