Florida just took more abortion rights away

A far-reaching court ruling essentially eliminates a legal process by which pregnant teenagers in need of an abortion can get permission from a judge — rather than a parent or a guardian.

Photo credit: Bruin79

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A trio of conservative judges just closed the state’s courts to young people in Florida facing unexpected pregnancies and in need of an abortion.

In a far-reaching ruling issued after just two days of deliberations, Florida’s Fifth District Court of Appeal on Wednesday shut down a legal process by which pregnant teenagers who wish to have an abortion can get permission from a judge — rather than a parent or a guardian.

It’s known as a “judicial waiver” — and it is meant to be a safety valve on strict state laws that otherwise forbid anyone under the age of 18 from obtaining an abortion in Florida without written approval from a parent.

The process permits a judge to grant a waiver from Florida’s mandatory notification-and-consent laws if a minor is “sufficiently mature” to make their own healthcare decisions or if informing a parent of the pregnancy is not in the “best interests” of the minor — like when they have been a victim of child abuse or sex abuse by a parent.

But a three-judge panel on Florida’s Fifth DCA declared that judicial waivers are unconstitutional under any circumstances.

Their reasoning? The process to obtain a judicial waiver — which, by necessity, excludes a minor’s parents from the legal proceedings — infringes on the parents’ right to due process in court under the Fourteenth Amendment of the U.S. Constitution.

“At minimum, the Fourteenth Amendment demands notice and an opportunity to be heard before a presumptively fit parent can be deprived of his or her right to be informed of and make medical decisions, including abortion decisions, for his or her child,” Judge Jordan Pratt wrote in a 17-page opinion. “By design, Florida’s maturity and best-interest judicial waiver procedures afford neither.”

This is a radical ruling.

Florida’s state Constitution specifically guarantees minors the right to seek court waivers from abortion-notification requirements. But one of the state’s appellate courts now says that any waiver that would enable a minor to obtain an abortion without any parental involvement is inherently unconstitutional under the U.S. Constitution.

“…Even if article X, section 22 of the Florida Constitution requires the judicial-waiver process that the Legislature has enacted — an issue on which we express no opinion — any such requirement must yield to the Fourteenth Amendment’s demands,” Pratt wrote.

Article X, Section 22 of the Florida Constitution

Pratt, a former attorney with a Christian conservative legal organization, was appointed to the appellate bench in May 2023 by Florida Gov. Ron DeSantis — using a reference, records show, from a senior executive at The Heritage Foundation, the Washington think tank behind “Project 2025,” the far-right policy blueprint for new Trump administration.

Pratt was joined in the decision by Judge Brian Lambert, a 2014 appointee of former Florida Gov. Rick Scott, and Judge John MacIver, a 2023 appointee of DeSantis. (MacIver worked as a gambling industry regulator before landing the judicial appointment with an assist from a casino lobbyist.)

Judges Jordan Pratt, Brian Lambert and John MacIver. (Source: Florida Fifth District Court of Appeal)

The decision continues a rapid expansion of anti-abortion laws in Florida in the three years since the United States Supreme Court overturned Roe v. Wade and ruled that American women do not have any abortion rights under the U.S. Constitution.

The Florida Supreme Court, where five of the seven justices have been appointed by Ron DeSantis, followed with its own ruling last year in which it declared that a “Right to Privacy” clause in the state constitution no longer provides any protections for abortion, either. That cleared the way for DeSantis and the state’s Republican-controlled Legislature to ban most abortions in Florida after just six weeks of pregnancy — one of the strictest abortion bans in the nation.

Florida voters nearly passed a ballot measure last fall that would have enshrined abortion rights into the state constitution. The measure won more than 57 percent of the vote. But that was just short of the 60 percent supermajority needed to pass.

The failure of that abortion-rights amendment loomed large in this week’s decision stripping pregnant minors of the right to seek judicial waivers. Pratt rested his ruling in part on the fact that women and girls no longer have any constitutional abortion rights that might counterbalance a parent’s due process rights.

“Whatever asserted constitutional abortion rights may have justified Florida’s judicial-waiver regime in the past unequivocally have been repudiated by both the U.S. Supreme Court and the Florida Supreme Court,” Pratt wrote. “Therefore, any deprivation of parents’ due-process rights to notice and opportunity to be heard can no longer be justified by their children’s asserted constitutional right to obtain an abortion…”

This probably isn’t the last word on the state’s judicial-waver law. Now that an appellate court has declared it unconstitutional, the Florida Supreme Court is likely to weigh in on the issue itself. And any ruling from the state’s high court could be appealed to the U.S. Supreme Court.

But in the meantime, this week’s ruling is already reverberating across the state. The Fifth DCA said it has ordered copies of its opinion distributed to every circuit court in Florida, with the expectation that all trial courts must abide by it — and thus deny all judicial waiver petitions — unless and until another appellate court issues a conflicting decision.

Correction: An earlier version of this story misstated the number of Florida Supreme Court Justices appointed by Ron DeSantis.