Florida AG made sweeping claims in confidential abortion case
Read the Attorney General's legal arguments in a secretive court case that has further curtailed abortion rights in Florida
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Parents have a constitutional right to force their children to give birth, according to Florida’s top cop.
That’s the argument the newly installed attorney general of Florida makes in legal briefs obtained by Seeking Rents in a secretive court case that has already further curtailed abortion access across the state.
The still-escalating case could have national consequences. And it may ultimately extend far beyond abortion rights — and into healthcare services like birth control, testing for sexually transmitted infections, and even mental health treatment.
This is one of the most unusual court cases Florida has ever seen.
It began on May 6, when a pregnant 17-year-old asked a judge near Jacksonville for permission to get an abortion.
Florida law generally forbids doctors from performing abortions for anyone under the age of 18 without written permission from a parent or guardian. But the law also allows courts to waive the mandatory notification-and-consent requirement if a judge finds the minor is mature enough to make her own healthcare decisions — or if informing a parent of the pregnancy could put her at risk of punishment or retaliation.
The trial court denied the request. So the 17-year-old appealed the decision to Florida’s Fifth District Court of Appeal.
But rather than simply deciding her case, the three appellate court judges assigned to it instead reached out and asked new Florida Attorney General James Uthmeier — a stridently anti-abortion politician — to join the confidential court proceedings and weigh in on whether judicial waivers should be allowed at all.
Uthmeier — a former chief of staff to Ron DeSantis who the governor installed as attorney general earlier this year — used the invitation to argue that judicial waivers are unconstitutional under both the U.S. and Florida constitutions. And the three appellate judges — two appointed by DeSantis, one appointed by former Gov. Rick Scott — used Uthmeier’s arguments to strike down Florida’s judicial-waiver law.
The May 14 ruling was issued a week after the minor made her appeal, and just two days after the court brought Uthmeier into the case. It has effectively closed Florida’s courts to any minor in the state facing an unexpected pregnancy and in need of an abortion.
The stakes are still rising: The Florida Supreme Court — where five of the seven justices are also Ron DeSantis appointees — is now expected to take up the issue itself. And because the case involves the U.S. Constitution, it could eventually reach the U.S. Supreme Court, too.
And a higher court could go even further with their ruling — especially if Uthmeier gets his way.
The attorney general’s legal briefs — which Seeking Rents obtained through a public-records request — show that the never-elected attorney general argued that parents have almost absolute control over the healthcare decisions for their children.
Though the word “parent” never appears in the U.S. Constitution, both it and the Florida Constitution implicitly grant a “fundamental parental right to oversee the upbringing and medical care of children,” Uthmeier and his deputy attorneys wrote in a 53-page brief.
Parents, they added in another passage, have “state and constitutional rights to direct their children’s upbringing and medical care.”
That means Florida’s judicial-waiver regime — which creates a pathway for a minor to obtain an abortion without approval from a parent — is unconstitutional because, they wrote, it “collides the right of parents to decide important moral and medical questions with and for their children.”
These kinds of arguments — which Uthmeier has also made in other states — are part of a national conservative legal moment to read an implied “parental rights” clause into the U.S. Constitution that can then be used to strike down laws around everything from LGBTQ+ rights to what public schools can teach about subjects like history and racism.
The medical implications here extend beyond abortion.
Florida, for instance, passed a“Parents’ Bill of Rights” law in 2021 that generally requires parental approval for all healthcare services for their children. But the state makes a number of exceptions — particularly in situations where some minors may be afraid to tell a parent and might avoid care altogether rather than get a parent involved.
Florida minors may obtain care for a pregnancy, testing and treatment for sexually transmitted infections, and substance abuse treatment without having permission from a parent. Teenagers can access some mental health services. Seventeen-year-olds can donate blood.
A broad ruling that parental control of medical decisions is baked into the constitution could put all those laws at risk.
Conservative scholars used to mock this kind of legal theory. The late U.S. Supreme Court Justice Antonin Scalia — a lion in conservative legal circles — openly scoffed at the notion of “’parental rights’ under a Constitution that does not even mention them.”
“If we embrace this unenumerated right, I think it obvious…that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law,” Scalia wrote in a 2000 dissent — in a case that Uthmeier leaned heavily on in his own briefs. “I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.”
The parental rights theory also conflicts with some of the anti-transgender legislation that right-wing groups have pushed through state Legislatures in recent years — such as a 2023 Florida law that prohibits gender-affirming care for minors even when their parents’ approve.
The Fifth District Court of Appeal didn’t go quite as far as Uthmeier in its May 14 ruling.
In its opinion, the court generally agreed with the notion that parents have a constitutional right to make medical decisions for their children. But it declined to articulate how far those rights extend.
Instead, the court struck Florida’s judicial waiver law down because the court said it deprives parents of due process to defend their rights in court. That’s because parents are intentionally excluded from the proceedings — which, of course, are meant to determine whether a minor can obtain an abortion with notifying a parent in the first place.
“The Attorney General then argues that any deprivation of parents’ fundamental right to be informed of and consent to their children’s abortion must meet strict scrutiny, and that Florida’s judicial waiver regime cannot overcome that high hurdle,” Fifth DCA Judge Jordan Pratt wrote in the 17-page opinion. “We think it unnecessary to address that argument because, even assuming that parents can be deprived of this right, any deprivation must at a minimum entail due process.”
Pratt, a former attorney with a Christian conservative legal organization, was recently nominated for a federal judgeship by President Donald Trump.
There’s also another right-wing legal theory looming in the background of James Uthmeier’s briefs.
It’s a concept sometimes called “fetal personhood.” And it’s an attempt to give fetuses, embryos and zygotes many of the same legal rights as living children.
Anti-abortion activists view fetal personhood as a way to completely ban all abortion — from the very moment of conception and regardless of whether a woman has been raped or her health is endangered by the pregnancy.
But state personhood laws have also led to courts shutting down in vitro fertilization services and a braindead woman being kept on life support because she is pregnant.
Uthmeier didn’t make an explicit personhood argument in his briefs. But he implied it.
For instance, when urging the court to let him intervene in the case — a case that was, at least initially, simply about whether an anonymous 17-year-old could get an abortion — Uthmeier argued that the fetus lacked legal representation.
“Without the Attorney General’s intervention, neither the unborn child nor the parents of Jane Doe will be represented in this appeal,” he and his attorneys wrote.
In another section of his brief, Uthmeier argued that no judicial waiver could ever be constitutional because a state must have a “compelling state interest” to infringe on parental rights — and “there can be no compelling state interest in facilitating the taking of an unborn life.”
Once again, the Fifth District Court of Appeal steered well clear of the personhood debate in its opinion.
But as this case continues to climb, there’s nothing to stop a higher court from using this it as an opportunity to establish fetal personhood — like, say, the Florida Supreme Court, where justices have already signaled support for the theory.
so this poor kid goes to court for a routine parental waiver and ends up having the case go to appeals? traumatizing her further and turning her into the next Jane Roe?
And, in 2025 no journalist ever asks a man - how do you plan to balance career with family. Who has the burden ? Then again our country was founded by Puritans. We have come so far to go back so fast... it's only been 249 years and 100 since women were "allowed" to vote.