Judges from Florida to Kentucky find privacy rights to abortion in state constitutions

·3 min read
J. Scott Applewhite/AP

The decision by a Florida judge to block the state’s ban on abortions after 15 weeks is the latest salvo in a series of legal battles underway across the country over whether states have their own constitutional rights to privacy that protect women’s access to abortion care.

Already, judges in Louisiana and Utah have taken similar action to temporarily block abortion bans in their states. A judge in Kentucky rendered a similar ruling Thursday. And abortion rights advocates in Idaho, Arizona, Mississippi and Texas are pursuing parallel legal challenges.

Last week, a majority of Supreme Court justices overturned Roe v. Wade, a longstanding precedent established 50 years ago by the high court that found women had a constitutional right to an abortion. Five conservative justices said that no such right exists — and left it to the “democratic process” at the state level to determine how to regulate and restrict the procedure.

On the question of abortion, the Constitution is “neither pro-life nor pro-choice,” Justice Brett Kavanaugh wrote in a concurring opinion in Dobbs v. Jackson Women’s Health Organization. “The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the states or Congress.”

Several states already have more precise language in their state constitutions regarding privacy rights than in the U.S. Constitution, including Florida, which states that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” A right to privacy is unenumerated in the U.S. Constitution and remains a source of debate among legal scholars.

“It’s federalism in action,” said Kim Lane Scheppele, a professor of sociology and international affairs at Princeton University and faculty fellow at the University of Pennsylvania Law School. “The U.S. Supreme Court in Dobbs only said that the U.S. Constitution no longer protects the right of a pregnant person to choose abortion. But the U.S. also has 50 state constitutions, and those constitutions may contain protections that the U.S. Constitution does not.”

“The Florida court is looking at that section and has paused the operation of the Florida statute while it figures out whether the state Constitution offers more protection than the U.S. Constitution does,” Scheppele added.

Some states that allow for referendums on constitutional amendments are taking immediate action, placing abortion-related questions on their election ballots. California lawmakers have decided to codify a state constitutional right to abortion, while Kentucky is going in the opposite direction, proposing a referendum making clear that it protects no such right.

The Florida decision, by Judge John C. Cooper of the Second Judicial Circuit Court in Tallahassee, halted enforcement of the law signed by Florida’s Republican governor, Ron DeSantis, that was meant to take effect Friday. Cooper made his ruling from the bench Thursday but said it would not take effect until he signed an order. The judge did not say when that would be, so it is possible that the new Florida law will take effect briefly.

The DeSantis administration said it will appeal the decision, and that fight could end up in the Florida Supreme Court. Three of its seven justices have been appointed by DeSantis in recent years.

Even still, the court will have to rule based on what is in the Florida Constitution — not the U.S. Constitution.

“Dobbs should have little if any effect on the appeal,” said Ilya Somin, a professor of law at George Mason University. “Dobbs is only about the federal Constitution. State constitutions can — and often do — protect rights that the federal Constitution, as interpreted by the Supreme Court, does not.”

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