With its June 2022 Dobbs v. Jackson Women’s Health Organization decision, the U.S. Supreme Court “returned to the people and their elected representatives” the “authority to regulate abortion.”[1] As a result, the citizens and legislators of many states have examined their existing laws about abortion, have engaged in debates about what those laws permit and prohibit, and are in the process of deciding whether to retain or change those laws. Florida has proven to be no exception to this trend. And two recent decisions of the Florida Supreme Court shed important light on what Florida law requires related to abortion and whether and how Florida voters may change those requirements.

The Florida Constitution: Originalism and Abortion

The Florida Supreme Court’s decision in Planned Parenthood of Southwest and Central Florida v. Florida[2] involved a challenge to a Florida statute banning abortions—with certain exceptions, including for the life and health of the mother—if the unborn child is more than 15 weeks old.[3] Shortly after this law took effect, seven abortion clinics and one medical doctor sued the state alleging that the new law violated the Florida Constitution’s Privacy Clause.[4] Unlike the federal Constitution, which contains no explicit right to privacy, Florida’s constitution does contain such an explicit provision, which voters added in 1980.[5] It says:

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. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.[6]

Historically, starting with the 1989 case In re T.W., Florida’s Supreme Court has said that this provision protects the right to an abortion.[7] Relying on T.W., the trial court granted the request of those challenging Florida’s 15-week abortion ban and issued a temporary injunction prohibiting the law from taking effect. It found that the challengers were likely to succeed on the merits of their claim based on the Florida Supreme Court’s prior abortion decisions.[8] But Florida’s First District Court of Appeal (an intermediate appellate court) reversed, finding that the challengers couldn’t show a likelihood of irreparable injury—another necessary ground for receiving a temporary injunction—so the Florida Supreme Court agreed to take up the case.

The Florida Supreme Court said that T.W., its first case to find a right to abortion under the Florida Constitution’s Privacy Clause, was “flawed in numerous respects” because it “failed to meaningfully consider the actual text of the provision at issue, failed to consider the history of the provision, and failed to give deference to the statute challenged in that case.”[9] The court went on to say that while T.W. “associated the language of the Privacy Clause with Roe’s understanding of privacy,” it “did not justify how that concept of privacy aligned with [the Florida Constitution’s] text—i.e., ‘the right to be let alone and free from government intrusion into private life.’”[10] Moreover, the court pointed out other key analytical flaws in that decision, saying that T.W. “did not ask how Florida voters would have understood the text of the provision and how that understanding would be informed by Florida’s long history of proscribing abortion.”[11] Instead, the court said,  T.W. simply “adopted Roe’s notions of privacy and its trimester framework as matters of Florida constitutional law,” without looking at any “dictionaries, contextual clues, or historical sources bearing on the text’s meaning.”[12]

The court declined to revisit its privacy precedents “outside the abortion context,” and it declined to adopt the state’s argument that the Florida Constitution’s Privacy Clause protects only “informational privacy.”[13] But it did find—using various sources to determine “the original public meaning of the text as it was understood by Florida voters in 1980”[14]—that those voters would not “have assumed the text encompassed a polarizing definition of privacy that included broad protections for abortion.”[15] Thus, the Florida Supreme Court “recede[d]” from its abortion precedents and found that the Florida Constitution’s Privacy Clause does not guarantee a right to an abortion. As a result, the court agreed with the Florida intermediate appellate court that challengers were not entitled to a temporary injunction, though on the grounds that there was not a likelihood of success on the merits rather than because there was no likelihood of irreparable injury.[16]

In the lower courts and at the Florida Supreme Court, “the State argued Planned Parenthood lacked standing to challenge [the statute] because none of the plaintiffs could assert a personal right to privacy” nor could Planned Parenthood “meet the requirements for overcoming the general bar to third party standing.”[17] During oral argument, however, the State urged the court to assume Planned Parenthood had standing in order to reach the merits.[18] Noting that Florida’s third party standing test is derived from federal cases, Justice Meredith Sasso concurred in the judgment but wrote separately to urge the Florida Supreme Court to revisit and clarify its standing doctrine. Even though “the Florida Constitution is textually distinct from the Federal Constitution,” she noted, the Florida Supreme Court has “at times reflexively adopted federal standing tests without examining whether the Florida Constitution demands similar requirements.”[19]

Justice Jorge Labarga issued a lone dissent, stating that he is “convinced that in 1980, a Florida voter would have understood that the proposed privacy amendment ‘included broad protections for abortion.’”[20]

Adding Abortion to the Florida Constitution

In its second abortion-related decision, the Florida Supreme Court examined whether a proposed amendment to the Florida Constitution, entitled “Amendment to Limit Government Interference with Abortion,” along with its accompanying summary, could be placed on the ballot. The Florida Attorney General asked the court to issue an advisory opinion on this issue. The Florida Constitution contains a one-subject requirement for such ballot initiatives,[21] and there are also “certain technical and clarity requirements for ballot titles and summaries,”[22] including a requirement that the ballot summary be “printed in clear and unambiguous language.”[23]

In determining whether the language of a ballot initiative is sufficiently clear under [statute], the court looks to see “(1) whether the ballot title and summary fairly inform the voter of the chief purpose of the amendment; and (2) whether the language of the ballot title and summary misleads the public.”[24] The majority of the court found that the ballot measure and its summary met these requirements and did not mislead the public, particularly because the “ballot summary [in this case] tracks the language of the proposed amendment itself . . . .”[25] In fact, the court noted that the summary “says nothing more and nothing less than what the operative language of the proposed amendment itself says.”[26] The majority made clear that the question for its

consideration is not whether the proposed constitutional language itself is free of any ambiguity or whether there are uncertainties regarding the potential legal effect if the proposed amendment were to pass but whether the ballot summary misleads voters as to the new constitutional language voters are asked to adopt in the proposed amendment itself.[27]

The majority said that the “main clarity arguments advanced by the opponents” of the ballot initiative would effectively impose “requirements on the substance of a proposed amendment rather than require accuracy in the ballot summary.”[28] Further still, the court said that no ambiguity had been shown in the text of the proposed amendment itself.

Chief Justice Carlos Muñiz, joined by Justices Charles Canady and John Couriel, concurred, noting that the court could only play a “constrained role in the amendment process” that is “dictated by the limited authority and task the people have assigned” to it.[29] He noted that while the “proposed amendment would constitutionalize restrictions on the people’s authority to use law to protect an entire class of human beings from private harm,” it is ultimately “up to the voters—not this [c]ourt—to decide whether such a rule is consistent with the deepest commitments of our political community.”[30]

Justice Jamie Grosshans, joined by Justice Sasso, dissented, noting that “the precise scope” of the court’s review in its advisory role on ballot initiatives “is subject to debate.”[31] She said that while the majority “implies that [the court simply] check[s] to see if the summary and title track the amendment’s text,” the court has “consistently interpreted [its] role to be more comprehensive” and has “examined the material legal effects of the amendment—thereby ensuring that the voters are not misled and have fair notice of the decision before them on the ballot.”[32] She argued that the court’s “statutory duty requires more than simply inspecting the summary for technical compliance” and that the court must “determine if the summary clearly explains the chief purpose of the amendment,” which “will, at times, require the summary [to] do more than simply echo the amendment’s text.”[33] In her view, a ballot summary must “inform the voter as to material legal effects”[34] of the proposed amendment, but here, the summary did not do that. She noted that this amendment would return “abortion issues back to the courts to interpret scope, boundary, definitions, and policy, effectively removing it form the people and their elected representatives” because of its vague language.[35]

Justice Renatha Francis also dissented, noting that “the summary hides the ball as to the chief purpose of the proposed amendment: which, ultimately, is to—for the first time in Florida history—grant an almost unrestricted right to abortion.”[36]

Justice Sasso, joined by Justices Grosshans and Francis, also dissented, noting that the “cut-and-paste approach to preparing the ballot summary fails to satisfy [the] legal obligation to provide an explanatory statement of the proposal’s chief purpose.”[37] She went on to say that the court has not before “been presented with an amendment quite like this” because of “the proposed amendment’s overwhelmingly vague and ambiguous language and structure.”[38] Because the amendment has no “readily discernable meaning,” Justice Sasso argued that the court would likely have “to determine even its most essential legal effects over time.”[39]

[1] 597 U.S. 215 at 292 (2022).

[2] Planned Parenthood of Southwest and Central Florida, et al., v. Florida, 384 So. 3d 67 (Fla. 2024).

[3] Fla. Stat. § 390.0111, (2022); ch. 2022-69, § 8, Law of Fla. (providing an effective date of July 1, 2022).

[4] Planned Parenthood at 71 (noting that this provision “has traditionally been referred to as the ‘Privacy Clause’”).

[5] Fla. Const. Art. I, § 23.

[6] Id.

[7] In re T.W., 551 So. 2d 1186, 1191 (Fla. 1989); N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 639 (Fla. 2003); Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1246, 1253-55 (Fla. 2017).

[8] Planned Parenthood at 74.

[9] Id. at 74.

[10] Id. at 75 (citing In re T.W. and Fla. Const. Art. I, § 23.).

[11] Id.

[12] Id.

[13] Id. at 81 n.7.

[14] Id. at 76.

[15] Id. at 87.

[16] Id. at 88-89.

[17] Id. at 91 (Sasso, J., concurring).

[18] Id. at 74 n.6.

[19] Id. at 89-90 (Sasso, J., concurring).

[20] Id. at 93-94 (Labarga, J., dissenting) (citation omitted).

[21] Fla. Const. Art. XI, § 3.

[22] Advisory Opinion to the Attorney General Re: Limiting Government Interference with Abortion, 384 So.3d 122 at 124(Fla. 2024) (citing Fla. Stat. § 101.161 (1) (2023)).

[23] Fla. Stat. §101.161(1) (2023).

[24] Advisory Opinion, 384 So.3d at 133 (citing Advisory Opinion to Atty. Gen. re Rights of Electricity Consumers regarding Solar Energy Choice, 188 So. 3d at 831).

[25] Id. at 133.

[26] Id. at 134-35.

[27] Id. at 134.

[28] Id. at 135.

[29] Id. at 139 (Muniz, J., concurring).

[30] Id. at 140.

[31] Id. at 140 (Grosshans, J., dissenting).

[32] Id. at 141 (citations omitted).

[33] Id.

[34] Id. at 142.

[35] Id. at 143.

[36] Id. at 145 (Francis, J., dissenting).

[37] Id. at 149 (Sasso, J., dissenting).

[38] Id. at 149-50.

[39] Id. at 150.

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