Planned Parenthood of Southwest and Central Florida v. State of Florida
Supreme Court of Florida, 4/1/24
No. SC2022-1050, 2024 WL 1363525
Justice Grosshans
Topics: Abortion, Privacy, Stare Decisis
Quick Take: Receding from three of its own precedents, the Supreme Court of Florida has ruled that Florida’s constitutional privacy right, Art. I, § 23, does not protect a right to abortion. It held that the 2022 15-week abortion ban is constitutional under the Florida Constitution, and the Court’s decision will trigger a 6-week abortion ban.
On the same day, in a 4-3 decision, the Supreme Court of Florida has approved for placement on the November 2024 ballot a proposed Florida Constitutional amendment that would, if approved by 60% of voters, protect a right to abortion through the time of fetal viability.
Full Take: In Roe v. Wade, the United States Supreme Court found an implied right to privacy in the Constitution that guaranteed a right to an abortion prior to the viability of a fetus.
Seven years later, Florida enacted an express right to privacy, Art. I, § 23, Fla. Const. For decades, that was understood to mean that Floridians had a constitutional right to abortion consistent with Roe.
The Supreme Court of Florida held—on three separate occasions from 1989 to 2017—that Florida’s privacy right included a right to abortion. Those cases were In re T.W., 551 So. 2d 1186 (Fla. 1989); N. Fla. Women's Health & Counseling Servs., Inc. v. State, 866 So. 2d 612 (Fla. 2003); Gainesville Woman Care, LLC v. State, 210 So. 3d 1243 (Fla. 2017).
After the SCOTUS reversed Roe in the 2022 Dobbs decision, courts had to consider whether § 390.0111(1), Fla. Stat. (2022), a new 15-week abortion ban passed by the state legislature, was constitutional under Florida’s privacy clause.
The express privacy clause and three Florida Supreme Court decisions holding that the clause conferred abortion rights did not stop six of the seven Florida Supreme Court justices from holding that the Florida Constitution’s privacy clause does not protect abortion rights.
The majority admitted that it had to recede from the three cases. In T.W., the 1989 case, the Court held that the Florida Privacy Clause rendered unconstitutional a law that would have required unmarried minors to obtain parental consent or a substitute for consent to have an abortion. The case adopted the Roe trimester framework. That decision actually held the Florida’s privacy right was stronger than the federal right. T.W. stated:
Florida's privacy provision is clearly implicated in a woman's decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one's body that one can make in the course of a lifetime, except perhaps the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment.
Of all decisions a person makes about his or her body, the most profound and intimate relate to two sets of ultimate questions: first, whether, when, and how one's body is to become the vehicle for another human being's creation; second, when and how—this time there is no question of “whether”—one's body is to terminate its organic life.
In 2024, however, the new majority finds this old decision “flawed in several respects.” The majority finds that abortion rights aren’t mentioned in the text the Privacy Clause, which provides citizens with the “right to be let alone and free from government intrusion into private life.” T.W. followed Roe, and the majority cites the recent Dobbs decision for the proposition that Roe was wrong.
Justice Grosshans, the author of the decision, makes what can only be described as an incorrect statement of fact. She writes that Roe was premised on a “privacy” right that did not come from the Fourteenth Amendment’s Due Process clause. She incorrectly thinks that Roe found a privacy right somewhere other than the 14th Amendment and that in 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court detached abortion rights from the concept of “privacy” and, instead, found that the right was rooted in the Due Process Clause of the Fourteenth Amendment. This is just wrong. There is no other way to say it. Roe noted that the lower court found the right of privacy was rooted in the Ninth Amendment, but the majority stated that “we feel it is” founded “in the Fourth Amendment’s concept of personal liberty and restrictions upon state action.” Later, it stated, “to summarize and repeat,” the Texas statute criminalizing abortion “is violative of the Due Process Clause of the Fourteenth Amendment.” Roe v. Wade, 410 U.S. 113, 164 (1973). It can’t get more plain than that.
Justice Potter Stewart, in concurring, celebrated the reinvigoration of so-called “substantive” due process rights under the Due Process Clause of the Fourteenth Amendment. Roe v. Wade, 410 U.S. at 164 (Stewart, J, concurring). The lone dissenter, Justice Rehnquist, decried the majority’s “new wrinkle” by transposing the “compelling state interest” test from the Equal Protection Clause of the Fourteenth Amendment to the Due Process Clause of the Fourteenth Amendment. Roe v. Wade, 410 U.S. 113, at 173 (Rehnquist dissenting). So everyone involved in Roe agreed and understood that the privacy right to abortion came from the Fourteenth Amendment’s Due Process Clause. Justice Grosshans’ statement to the contrary is simply incorrect.
And Casey did not overrule Roe as Justice Grosshans suggests. In Casey, the Supreme Court affirmed that, in light of stare decisis, “the essential holding of Roe v. Wade should be retained and once again reaffirmed.” Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 845-46 (1992). The plurality opined that the “Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.” Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. at 846. Casey reaffirmed that the right protected the “privaterealm of family life which the state cannot enter,” which included the right to decide whether to “bear or beget a child.” Casey, 505 U.S. at 851. Casey applied stare decisis, noting that Roe was not “unworkable,” one of the requirements for overruling prior precedent and rejecting stare decisis. The Casey court expressly applied a “reliance” analysis, noting that while one could argue that there was no “reliance” on Roe because abortion involves unplanned pregnancies, that kind of analysis would miss the point. To
do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.
Casey, 505 U.S. at 856. While Justice Grosshans opines that Casey abandoned any notion of “privacy,” Casey expressly stated that if
the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S., at 453, 92 S.Ct., at 1038 (emphasis in original). The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.
Casey, 505 U.S. 833, 896. So to state that Casey abandoned the notion of a right to privacy and transferred abortion rights from an implied privacy clause to the Due Process Clause of the Fourteenth Amendment is factually just wrong. Privacy rights were assigned to the Due Process Clause by both the Roe and Casey courts.
Nevertheless, Justice Grosshans thinks that some supposed repudiation of Roe’s privacy doctrine by Casey“demonstrates the tenuous connection between ‘privacy’ and abortion.”
Justice Grosshans then uses this incorrect fact to misstate what the “original public meaning of the text” of Florida’s privacy clause meant “as it was understood by Florida voters in 1980,” when the clause was adopted. The court correctly notes that the privacy clause does not include the word “abortion.” In all fairness, it definitely does not. Because the Court incorrectly observes that Casey untethered “privacy” from “abortion,” the Court studiously avoids looking at the incredible similarities between the privacy clause and the language in Roe and Casey equating abortion and a “right to be let alone and free from governmental intrusion into the person's private life.” Justice Grosshans looks at 1980 dictionaries and looks only to DISSENTS from Justices White and Rehnquist complaining that abortion was not a private matter. But those dissents, of course, were responding to majorities who stated the opposite. And the Florida Supreme Court studiously avoids citing those majority opinions or the opinions following those decisions, all of which equated “privacy” to “abortion rights.”
The Court notes that the right “to be let alone” implicated privacy under Florida law in the decades prior to Roe, but it didn’t include the right to inflict harm on oneself or others. (The implication here is that abortion is murder, and pre-Roe Florida privacy rights never sanctioned anyone killing anyone).
The Court does acknowledge—as it had to—that after Roe, “privacy” was legally synonymous with abortion rights. The Court, however, thinks that this didn’t translate to Florida voters understanding in 1980 that “privacy” was an abortion right. (The court makes this bold statement despite three versions of the Supreme Court of Florida stating that that’s exactly what “privacy” meant. This 2024 court purports to have its finger on the pulse of what Floridians thought in 1980). Again, the Court misstates Casey by saying that in 1992 (12 years AFTER the adoption of Florida’s privacy clause), the Supreme Court untethered abortion rights from “privacy” rights. Which isn’t true, but even if it were, it would have happened 12 years after Florida’s vote. Roe existed in 1980; Casey didn’t. Dobbs didn’t.
Justice Grosshans does state that, as far as she can tell, legislators at the time did not discuss the privacy clause having an effect on abortion rights. She cites actions of the legislature as indicating some sort of understanding that abortion was not protected by the Privacy Clause. She ignores the concurrence in T.W. of then-Chief Justice Ehrlich, who wrote:
I wholeheartedly concur that Florida's express constitutional right of privacy, article I, section 23, Florida Constitution, is implicated in this case. 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, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). 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. See Jenkins v. State, 385 So.2d 1356 (Fla.1980).
In re T.W., 551 So. 2d 1186, 1197 (Fla. 1989)(C.J. Ehrlich concurring). In taking down T.W., Justice Grosshans simply states that T.W. failed to apply the principle that statutes are presumed constitutional, and that it relied on Roe, which was wrongly decided. So the court receded from it. Of course, Roe dealt with an implied right, while Florida’s Constitution has an express right, but that doesn’t seem to matter.
Even though the majority thinks that T.W. was wrongly decided, a major stumbling block would historically have been the principle of stare decisis, the principle of letting prior decisions—even wrong decisions—stand in order to ensure stability in the law. The majority here essentially announces the end of stare decisis, announcing a new rule that when the court thinks an old decision is wrong, there must be some compelling reason not to recede from it.
Let’s back up for a second. In 2009, in Valdes v. State, 3 So.3d 1067 (Fla. 2009), the Supreme Court of Florida articulated a long-standing three-prong test for whether to recede from precedent. That court noted that stare decisiscounsels us to follow our precedents unless there has been a “significant change in circumstances after the adoption of the legal rule” or an error in legal analysis. The presumption in favor of stare decisis could be overcome by weighing three factors: (1) Has the prior decision proved unworkable due to reliance on an impractical legal ‘fiction’?; (2) Can the rule of law announced in the decision be reversed without serious injustice to those who have relied on it and without serious disruption in the stability of the law? And (3) have the factual premises underlying the decision changed so drastically as to leave the decision’s central holding utterly without legal justification? But the new court doesn’t follow this test.
The phrase stare decisis appears in Justice Grosshans’ opinion only at the very end—page 15. She instead cites a 2020 case for what she calls “our established test for assessing stare-decisis issues,” which she describes as a “two-part framework.” That 2020 case, State v. Poole, 297 So.3d 487 (Fla 2020), didn’t purport to overrule the three-part test, exactly. It just sort of said it never really existed. It repeated the three-part test, citing a 2003 decision, North Florida Women's Health for the test, and then said:
Though we do not doubt that this list of considerations could have been culled from our pre-North Florida Women's Health precedents, we note that the Court there offered no citation to support its compilation. In the years since our decision in North Florida Women's Health, we have not treated that case as having set forth a stare decisis test that we must follow in every case. On the contrary, we have repeatedly receded from erroneous precedents without citing North Florida Women's Health or asking all the questions it poses.
That kind of test with prongs and balancing tests and factors, the Poole court stated, would end up with the court thinking like a legislature. Of course, it’s hard not to see how the exact opposite is true. In paring down the test for stare decisis to make it easier to overturn old decisions, courts will inevitably look more like they are legislating from the bench. The Poole court stated that they wanted to apply a “much more straightforward” test. “When we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, precedent normally must yield.” In other words, the “presumption” of stare decisis was reversed sub silentio, and any old decision the current majority feels is wrong “normally” will be overturned.
While that majority admitted that the whole idea of stare decisis means “sticking to some wrong decisions” for the sake of stability in the law, that struck the current majority as too much of a straightjacket. The court held that if the old decision was wrong, “the proper question becomes whether there is a valid reason why not to recede from that precedent.” And the critical factor—what the current court calls the second prong of the new test—is “reliance.” In property and contract cases, reliance on old precedent will be seen as high. In procedural or evidentiary rule cases, reliance will be seen as low. In Poole, “no one…altered his behavior in expectation of the new procedural rules” that were at issue in the case, so the court had no trouble sweeping away an old precedent.
So that’s the new view of stare decisis in Florida. If the current court disagrees with an old case, they ask “why not” get rid of it, and they look only to see if there is some evidence of an important “reliance” on the old case.
Even with such a flimsy view of stare decisis, however, how could it not be said that Floridians have not come to rely on abortion rights? How could a constitutional right not rank higher than property or contract rights under the 2000 Poole test? Recall that Casey said that discounting reliance because abortions are a reaction to unplanned pregnancies would be a mistake because to
do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.
Casey, 505 U.S. at 856. In 2022, Dobbs twisted this statement 180 degrees, stating
In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” 505 U.S. at 856, 112 S.Ct. 2791. For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present here.
Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 287–88 (2022). But then Dobbs admitted that Casey found reliance, but it disagreed with Casey that reliance existed, stating that reliance only exists where advance planning of great precision is most obviously a necessity. Justice Grosshans does not see that anyone relied on the existence of a constitutional right. She agreed with Dobbs—which, again, was overruling an implied right, not an express one—in finding that no one relies on anything when they have an unplanned pregnancy. And just like that, since there’s no “reliance” on Florida’s abortion rights, it’s gone.
The Court receded from the other two precedents not by analyzing them but by stating that Gainesville Woman Care and North Florida Women's Health “both applied T.W.’s flawed reasoning and offered no additional doctrinal justification for locating a right to abortion in the Privacy Clause.” Poof. They’re gone.
The remedy here is simply the denial of an injunction of the new law, so it’s not exactly a decision on the merits, just a decision about Planned Parenthood’s “likelihood of success on the merits,” but the merits of the case are now toast. The First District’s opinion below, which had reversed the trial court’s imposition of an injunction, was approved, while the First District’s reasoning was not adopted.
CHIEF JUSTICE MUÑIZ and JUSTICES CANADY, COURIEL, and FRANCIS CONCURRED.
JUSTICE SASSO CONCURRED SPECIALLY. She agreed wholeheartedly with the majority, but also applauded the State’s concession—and the majority’s choice to accept that concession—that Planned Parenthood had standing. She opposes any attempt to impose the federal test for standing in Florida courts, and she hopes that the Court will readdress the test for standing in the future.
JUSTICE LABARGA is the lone DISSENT in this case. Contrary to the majority, he was convinced that in 1980, a Florida voter would have understood that the proposed privacy amendment included broad protections for abortion. The Supreme Court case holding a state statute prohibiting contraception violated a constitutional right to marital privacy—Griswold v. Connecticut—was issued in 1965, seven years before Roe and 15 years before Florida’s vote adopting the privacy right. He writes that the
majority correctly recognizes the significant impact of Roe but stops short of the reality that Roe, having fundamentally changed the landscape of abortion rights on a national scale by redefining the scope of the right of privacy, was key to the public understanding of the right of privacy. During the seven-year interval between Roe and Florida voters’ adoption of the right of privacy, I find it inconceivable that Americans—and more specifically, Floridians—were not aware that the right of privacy encompassed the right to an abortion. I agree with the petitioners that “the public understanding of [Roe’s] privacy definition was so engrained by 1980 that even without a specific mention of the term abortion, the Privacy Clause unequivocally included such a right by implication.” Id. at 29-30.
He summarizes the substantial public discourse about Roe being rooted in a right of privacy, citing Associated Press articles and even Walter Kronkite, the face of American television news in that era. He cites a slew of news articles from prominent publications tying Roe to the word “privacy” in the years between Roe and the 1980 Florida vote. He cited specific Florida sources. He cited Florida Supreme Court cases equating Roe and a clearly established right to “privacy.” He cited a scholar witness’s testimony that there was not much discussion about whether Florida’s privacy clause meant “abortion” because everyone at the time knew that that’s exactly what it meant in light of the exact phrases in highly publicized abortion cases.
Justice Labarga notes that Casey retained Roe and that even if it hadn’t, it was issued in 1992, 12 years after Florida’s vote adopting the privacy clause.
He noted that the effect of the majority’s opinion will not just permit the 15-week ban, but it also triggers the 6-week ban that was passed in 2023. Under the trigger language in the statute, the 6-week ban will be effective 30 days from the Court’s decision (so on or about May 1, 2024).
With “deep dismay,” he dissented.
