COURTS

Florida could become a 'haven state' for those seeking abortions if Roe v. Wade falls

A new law banning abortion after 15 weeks will be more lenient than those in other states. Planned Parenthood expects a surge in out-of-state cases this summer.

Jane Musgrave
Palm Beach Post

UPDATE: The Supreme Court ruled on Friday, June 24, that Americans no longer have a constitutional right to abortion, a watershed decision that overturned Roe v. Wade, by a 6-3 margin. 

When Alexandra Mandado stopped at a clinic in Jacksonville last week, she got a glimpse at the floodgates that could open in Florida if the U.S. Supreme Court overturns the 49-year-old landmark decision that legalized abortion. 

A desperate couple from Alabama had driven hundreds of miles to the clinic, where abortions are performed. Struggling to raise three children, they feared another child would plunge the family into inescapable poverty, said Mandado, head of the West Palm Beach-based Planned Parenthood affiliate that runs the clinic.

“They knew that if they had a fourth child, they wouldn’t be able to feed their other three,” said Mandado, who as president and CEO of the Planned Parenthood of South, East and North Florida oversees clinics from Miami to Jacksonville to Tallahassee.

As other Southern states have cracked down on abortion and clinics have closed, women from Georgia, Alabama, Mississippi and Texas have become more and more common at 15 licensed clinics Planned Parenthood operates and 40 others throughout the state.

Alexandra Mandado, Planned Parenthood

But if the nation’s highest court in June endorses a leaked draft opinion that blasts the watershed Roe v. Wade decision as “egregiously wrong from the start,” Mandado said what has been a trickle of out-of-state residents will turn into a torrent.

“We expect to see a surge in July,” she said. “As mind-boggling as it sounds, even with the 15-week restriction, we will be seen as a haven state.”

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Florida abortion restrictions may hinge on court challenges

Abortion-rights activists howled last month when Gov. Ron DeSantis signed into law the GOP-controlled Legislature’s bill that will ban abortion after 15 weeks of pregnancy beginning July 1. Their dismay was compounded when a judge in Tallahassee in April lifted a stay on a 2015 law and ordered clinics to force women to wait 24 hours before terminating unwanted pregnancies.

But if Roe is overturned, even with the waiting period and the new 15-week restriction, Florida abortion laws will be far more liberal than those in surrounding states.

Abortion-rights activists howled last month when Gov. Ron DeSantis signed into law the Legislature’s bill that will ban abortion after 15 weeks of pregnancy beginning July 1.

The Center For Reproductive Rights predicts that Florida will be the lone state south of Virginia on the Eastern seaboard where abortions will still be legal. It will be the only one of the five Gulf Coast states, including Texas and Louisiana, where the procedure will remain available.

The center says it expects abortion will immediately become illegal in 25 states across the country, including a wide swath of the United States, stretching as far north as Michigan and as far west as Texas.

DeSantis, a Catholic who describes himself as pro-life and has repeatedly thrown red meat to the Republican Party’s conservative base, has been uncharacteristically silent about plans to keep the state from becoming a destination for those seeking abortions.

Some expect he will call the Legislature into a special session to pass an abortion ban.

But those who have spent decades trying to outlaw abortion disagree.

Attorney Mathew Staver, founder of the conservative, religious-based Liberty Counsel, said the fight over abortion in Florida will end where it began — in the courts.

Planned Parenthood has already vowed to challenge the 15-week ban, which eliminates second-trimester abortions. Once that happens, Staver said his group and other abortion opponents will challenge claims that the ban violates the Florida Constitution. And, he said, they will win.

Attorney Mathew Staver, founder of the conservative Liberty Counsel, said the fight over abortion in Florida will end in the courts. Staver said Planned Parenthood will challenge Florida's 15-week ban, and once they do, his group and other abortion opponents will challenge claims that the ban violates the Florida Constitution. And, he said, they will win. 'The challenge of the 15-week ban will result in an abortion ban in Florida,' he says.

“The challenge of the 15-week ban will result in an abortion ban in Florida,” he said.

Abortion advocates, who have faced off against Staver for years, said the legal landscape is far different in Florida than in other states and even on the national level. Still, their confidence has been shaken by the change in the political landscape, which has shifted the makeup of Florida courts decidedly to the right. 

But even recognizing that the judiciary has become far more conservative in recent years, they insisted that the Florida Supreme Court would be hard-pressed to reverse a three-decade-long course and outlaw abortion in the state.

“For the Florida Supreme Court to overturn (previous court rulings) would require judicial acrobatics and activism which conservatives have been complaining about for decades,” said West Palm Beach attorney James Green, a former legal director of the American Civil Liberties Union. 

People attend an abortion-rights rally and march sponsored by the League of Women Voters held at the Meyer Amphitheater in downtown West Palm Beach on Saturday, May 14, 2022.

Caroline Mala Corbin, a constitutional law professor at the University of Miami and a former attorney with the ACLU’s Reproductive Freedom Project, agreed.

“I think the Florida Supreme Court would have an extremely difficult time finding that an abortion ban before viability wouldn’t violate the Florida Constitution,” she said.

A key issue: What does the right to privacy mean?

In the leaked opinion from the U.S. Supreme Court, Justice Samuel Alito assails Roe by pointing out that the word privacy is never mentioned in the U.S. Constitution. To create it, the high court in 1973 cobbled together five different amendments. 

“It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned," Alito wrote, insisting the legal underpinnings of Roe were fictional and the ruling should be overturned.

But unlike the U.S. Constitution or those in most other states, privacy is mentioned in the Florida Constitution. In 1980, a whopping 60% of Florida voters approved an amendment enshrining the right of privacy in the state constitution. 

And the wording is strong. “Every natural person has the right to be let alone and free from governmental intrusion into the person's private life,” it says.

People attend an abortion-rights rally and march sponsored by the League of Women Voters held at the Meyer Amphitheater in downtown West Palm Beach on Saturday, May 14, 2022.

In a pivotal 1989 decision, the Florida Supreme Court, in a 6-1 decision, ruled that the right to privacy includes a woman’s right to have an abortion.

“Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy,” wrote Justice Leander Shaw. “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.”

As recently as 2017, the court underscored that any attack on the right of privacy will be scrutinized closely.

“Today we make clear, in Florida, any law that implicates the fundamental right of privacy, regardless of the activity, is … presumptively unconstitutional,” Justice Barbara Pariente wrote, invalidating the Legislature’s attempt to impose a 24-hour waiting period.

In the opinion, Pariente pointed out that Florida voters in 2012 overwhelmingly rejected a constitutional amendment that would have weakened their rights. “Florida voters have clearly opted for a broader, explicit protection of their right of privacy,” she wrote.

Still, Staver said, despite the long history of decisions, he will argue that the Supreme Court got it wrong from the start. Just as Alito claimed that the 1973 U.S. Supreme Court invented the right to an abortion, Staver said the Florida Supreme Court misinterpreted the scope of the right to privacy.

People attend an abortion-rights rally and march sponsored by the League of Women Voters held at the Meyer Amphitheater in downtown West Palm Beach on Saturday, May 14, 2022.

“The right to privacy came out of Watergate,” he said, referring to the 1972 break in at Democratic headquarters in Washington that led to the downfall of President Richard Nixon. “People were concerned about the government collecting documents from citizens. It was all about the notion of documentary privacy.”

He points to the second line of the amendment as proof. It states: “This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

But Jon Mills, a law professor at the University of Florida who served in the Florida Legislature from 1978 to 1988 and was one of the co-sponsors of the amendment, disagrees.

“It’s straightforward that the scope was broad,” he said. “It was to provide relief from government intrusion, not just to protect information but freedom of action as well.”

'We’ve lost our humanity when it comes to the female sex'

In the 42 years since the amendment was passed, it has been used to stop government from interfering with other private decisions, such as refusing life-sustaining medical treatment and upholding parental rights.

“It strikes me that it’s pretty hard to say the broad constitutional right doesn’t apply to abortion at all,” Mills said. "There might be efforts to unwind other rights that are protected against government intrusion. I don't know if the court really wants to do that."

Corbin agreed. “It’s hard to imagine a greater intrusion than forcing someone to give birth against their will,” she said. “And it’s really hard to imagine that that language does not reach reproductive freedom.”

Green put it more bluntly. “The Florida Supreme Court would have to eviscerate the right of privacy,” he said.

But, Staver insisted, the test is whether there is a compelling interest for the state to get involved in private decisions. When it comes to abortion, the state interest, which has been too long ignored, is protecting the unborn, he said.

Mona Reis, who founded Presidential Women’s Center in West Palm Beach more than 40 years ago, scoffs at Staver’s claims. Studies strongly suggest that infant and maternal mortality rates will increase if abortion access is blocked, she said.

Mona Reis at the Presidential Women's Center in West Palm Beach Sunday, March 20, 2022.  Reis is the founder of the center.

In a 2020 article published in the International Journal of Environmental Research and Public Health, researchers said infant mortality is about 10% higher in states that have restricted abortion. While they cautioned that more study was needed, they pointed out that infant mortality plummeted from 1970 to 1973 in states that had legalized abortion.

A 2021 study by the University of Colorado that was published in the journal Demography, said there is no doubt more women will die if abortion is outlawed nationwide. Researchers estimated pregnancy deaths would increase 21% overall and 33% among Black women. 

Such grim predictions are fueling Planned Parenthood’s efforts to make sure enough health workers are available if women start streaming into Florida from other states if Roe is overturned.

“We are trying to staff up so we are prepared and we don’t have to turn away patients,” Mandado said.

For Reis and Mandado, who have spent years fighting to make sure women can decide whether to remain pregnant, the events of the last year have been wrenching.

“It’s a bit of a horrifying and depressing time for us,” said Reis. 

Women don’t make the decision to have an abortion lightly, she said. Once they have made their decisions, they deserve to have a safe and supporting place to go.

“We’ve lost our humanity when it comes to the female sex,” Reis said.

Maddie Dugan of West Palm Beach attends an 
abortion-rights rally and march sponsored by the League of Women Voters held at the Meyer Amphitheater in downtown West Palm Beach on Saturday, May 14, 2022.

Mandado, who was tapped in February to head up the Planned Parenthood office, agreed.

“It’s absolutely heartbreaking where we are in our history,” she said. “We’re talking about turning back the hands of time so that women can’t make their own decisions about their own bodies.”

But, she said, the pressure has only increased her resolve to make sure women, particularly poor and uninsured women, continue to have control over their reproductive health.

"Who else will be able to give them a voice if we don’t?” she asked.

jmusgrave@pbpost.com