Although Florida law already requires a parent or guardian to be notified before a minor has an abortion, the Legislature is fast-tracking bills that call for written, notarized consent as well.
Why?
Superficially, the intended targets are only teenage girls, and the legislation comes with the usual platitudes about the importance of parental involvement at difficult moments in their lives.
That’s bad enough.
But make no mistake: these bills also jeopardize abortion rights for all Florida women.
The transparent purpose is to undo a 1989 Florida Supreme Court decision that held that the state Constitution’s privacy clause guarantees freedom of reproductive choice. The decision in the case In Re TW, invalidated a parental consent law.
The Florida Constitution says this: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.”
“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,” then-Chief Justice Leander Shaw wrote for the majority.
Florida’s privacy right is explicit, in contrast to what the U.S. Supreme Court inferred from the U.S. Constitution in Roe v. Wade. Shaw emphasized that the TW case was decided according to the Florida Constitution alone.
His opinion acknowledged that “common sense dictates that a minor’s rights are not absolute,” but said the state had not proved a “compelling interest” for the law.
Ever since, Florida women — or at least, those over 18 — have had the assurance that Florida would protect their freedom of choice regardless of how the U.S. Supreme Court might eventually erode Roe, as it has, or overturn it completely, as many fear and others hope it will do with Brett Kavanaugh having replaced Justice Anthony Kennedy.
The scheme in Tallahassee is to erase In Re TW, leaving Florida women with no protection if Roe is overturned.
The Legislature responded to that decision with a 1999 law calling only for parental notification, but the state court struck that down, too. In 2004, voters approved a constitutional amendment authorizing a parental notification law, provided that a minor could ask a judge to waive it.
But the constitutional amendment authorized only notification, not consent, and the bills steaming along in Tallahassee call for consent. Their enactment would guarantee a court challenge that opponents of reproductive choice expect to win this time.
The state justices who decided In Re TW are long gone, along with liberal successors who would likely have reaffirmed it. Justices appointed by former Gov. Rick Scott and the new governor, Ron DeSantis, are conspicuously conservative, and DeSantis has two more vacancies to fill.
Sen. Dennis Baxley, R-Ocala, gave away the game in a boastful speech to a Christian Family Coalition event in August.
“We have some new court members. We need another look at what the privacy clause means and is for. And I contend on the issue of parents taking responsibility of their children, that parental consent is an easy argument for us,” he said.
Baxley, a co-introducer of the consent bill, earned criticism for recent interviews in which he implied that abortion is a means to replacing Americans of European descent with a “new society.” It was unmistakably white supremacist dogma.
The parental consent bills — HB 265 and CS/SB 404 — would be bad legislation even without an ulterior motive.
They burden physicians with new reporting requirements. Parental consents would have to be notarized, along with proof of parenthood. A doctor’s failure to preserve a viable fetus would become a third-degree felony rather than a misdemeanor. Requiring notice or consent, according to national data, typically delays abortions by 8.6 days, which can make a difference between taking the abortion pill and undergoing an invasive procedure.
As in the present notification law, both bills allow minors to seek waivers from judges and to have lawyers appointed for them. And doctors can ignore it — if they dare — in cases of a medical emergency. Otherwise, the abortion provider would commit a felony.
Available statistics suggest that most parents are being notified when a minor girl wants an abortion. Data provided to the House Health and Human Services Committee indicated that of some 2,800 legal abortions performed on minors in Florida in 2017 and 2018, parents had been notified in all but 387 cases in which judges had granted waivers. Judges denied them only 22 times.
The data do not indicate how many of the waiver requests owed to incest.
The Senate bill came out of the Health Policy Committee on a party-line vote and is pending in the Judiciary Committee. The House bill, which went to only one committee, is already on the House calendar available for passage as soon as the Legislature convenes Jan. 14. The House passed a similar bill last year, but the Senate didn’t act, a circumstance that Senate President Bill Galvano, R-Bradenton, has pledged to correct this year.
Colossal hypocrisy permeates this.
During the House committee’s hearing, the chairman refused to allow a Democratic member’s question about what might be proposed for the welfare of children who are carried to term. The Senate committee’s Republican majority shot down 15 Democratic amendments, including several by Lauren Book, D-Plantation, to ensure that children are aware of their rights to seek judicial waivers.
As Justice Shaw observed in the 1989 case, minors may undergo any other medical procedure without parental consent. That includes carrying the fetus to full term, which multiple studies have shown to be riskier than clinical abortion.
Judge James Wolfe of the First District Court of Appeal made a similar point in dissenting to an Aug. 1 decision that reversed a lower court decision overturning a law imposing a 24-hour waiting period on all women seeking abortions. The majority sent the case back to the circuit court in Tallahassee for more testimony.
“Uniquely treating abortions differently from other medical procedures and failing to present evidence that the statute is the least restrictive means to accomplish the purported goals…renders the law unconstitutional,”” wrote Wolfe. “Discouraging people from exercising a constitutionally protected right does not constitute a compelling state interest.”
Of the First District’s 15 judges, Wolfe is the only one appointed by a Democratic governor. Florida’s appellate courts, like the Legislature, are now packed with people hostile to reproductive choice. Citizens to whom that matters have much hard work to do.
Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Sergio Bustos, Steve Bousquet and Editor-in-Chief Julie Anderson.
