How a Florida court took unusual steps to limit abortion access for minors

Yahoo

4 days ago

TALLAHASSEE – A Florida appeals court took an unusual legal step when it earlier this month struck down as unconstitutional a law allowing minors to get abortions without parental consent.
Florida youth have for decades been able to petition a judge for permission to have an abortion without their parents' knowledge.
This May, a pregnant 17-year-old initiated one of those cases. When a lower court judge denied her the waiver for an abortion, she appealed.
The Fifth District Court of Appeal took up the appeal. But instead of focusing solely on the teen's case, the court used it to weigh major constitutional questions — a move that one judge acknowledged is rare.
The court's decision effectively stops most minors from being able to have abortions unless their parent gives consent, further restricting Florida's already limited pathways to abortion and setting up a possible question for the Florida Supreme Court.
The move was celebrated by Florida Attorney General James Uthmeier and other conservatives. But abortion access advocates have decried it, saying the court went into the case with an outcome in mind and found its way to it.
'Judicial overreach doesn't even begin to describe it,' said Amy Myrick, senior counsel of U.S. litigation at the Center for Reproductive Rights.
Before the appeals court judges got all the details about the teen's case, they drafted an order asking her lawyers to answer four legal questions.
The questions had nothing to do with the minor's specific circumstances but were more broadly about the judicial waiver process itself, including whether the parents of minors got due process.
Then, in a move that some observers said was unusual, the court invited Florida's Republican Attorney General James Uthmeier to weigh in on the legal questions the judges raised.
Uthmeier joined the case as an opponent and argued that the judicial waiver process violates parents' rights. (Usually, in the judicial waiver process, the minor makes the petition and the judge decides if the girl is 'sufficiently mature' to decide whether to terminate her pregnancy. There are normally no other outside parties involved besides the minor's lawyers.)
'When you're reaching out to do a whole bunch of stuff you don't need to do to resolve a case, it's usually because you're trying to get a big legal conclusion about it,' said Mary Ziegler, a reproductive law expert at UC Davis School of Law.
Mat Staver, the chairman of the conservative anti-abortion group Liberty Counsel, said it wasn't unusual for the courts to give notice to the attorney general when a constitutional provision is being questioned, and said it was 'very appropriate' for the appeals court to do so.
Uthmeier last year, while he was still Gov. Ron DeSantis' chief of staff, was the chairperson of a political committee that opposed a proposed amendment to protect abortion rights in Florida. That amendment ultimately failed in November's election.
Uthmeier has also pushed against the idea of minors getting abortions without parental consent. A few months before weighing in on the Florida case, Uthmeier filed a brief encouraging the U.S. Supreme Court to reevaluate what rights minors have and what rights their parents have when it comes to abortion, arguing that there was a common law tradition of parents having rights over their children.
Florida's bypass process has been used less frequently after the six-week abortion ban went into effect last year. In 2024, courts saw 130 petitions filed across the state, most of which were granted.
A judge on the Fifth District Court of Appeal acknowledged that the court's decision to weigh in on the constitutionality of the law, rather than resolve it more simply, was unusual.
The court also said that it was possibly the 'first and only' time it would be able to address the question, 'which has thus far evaded review despite being posed in an untold number of prior cases.'
In a concurring opinion in the recent Fifth District case, Judge John MacIver said the court thought it was appropriate to address the constitutional questions because parents whose kids have abortions without their knowledge would not be able to challenge the law themselves since, 'by design,' the law blocks those parents from being informed.
The justices' actions were primed by a move last year by the First District Court of Appeal. That court said it couldn't review abortion waiver cases because there was no party opposing the minor.
'The only opportunity for a defense of those fundamental rights came about here because the Attorney General of Florida was invited to brief as amicus and instead sought intervention,' MacIver said.
Of the three judges in the Fifth District who heard the case, two were appointed by DeSantis — MacIver and Jordan Pratt, who authored the decision and used to work at a conservative religious liberty law firm that has represented anti-abortion parties.
Pratt this week was nominated by President Donald Trump to a federal judgeship.
The third justice, Brian Lambert, was appointed by former Gov. Rick Scott. No judge dissented.
After the court's ruling, there are limited circumstances where minors can still use the waiver process, such as if they are the victim of child abuse, said Elizabeth Ling, an attorney with the abortion access group If/When/How.
'For the vast majority of people who are under 18 in the state of Florida, the judicial bypass or the judicial waiver process is no longer an option,' Ling said.
With the ruling in place, pregnant minors in Florida's foster system find themselves in uncharted territory.
Florida law prohibits the Department of Children and Families from ever authorizing an abortion — meaning that foster kids have no other option but to use the judicial waiver process if they want to terminate their pregnancy.
Ling said that because the ruling leaves the avenue only for victims of child abuse, it could create a split process for foster kids. Youth who are in the system because of abuse could access the waiver process, but foster youth who are in the system for other reasons may not be able to.
Ling said research shows that young people largely involve a parent with news of their pregnancy, and said when people seek otherwise, they 'have thought very deeply and carefully' about it.
She said young people are now 'being forced to choose between either having the abortion or their safety and their wellness.'
The appeals court said it anticipated future Florida Supreme Court review of the question of whether the judicial waiver law complies with a parent's due process rights.
If the Florida high court does hear the case, earlier precedent could mean it sides with people trying to dismantle the judicial waiver process. Last year, the Florida Supreme Court said the state constitution doesn't guarantee a right to an abortion.
Ziegler said if the judicial waiver case does move to the Florida Supreme Court, it could be a way for anti-abortion advocates to argue about fetus' rights in their briefing in the hopes that justices would seize on it and include it in a ruling.
If the court determines that fetuses have more rights, it could lead to further restrictions on abortion.
'They want to get on the Florida Supreme Court on personhood,' Ziegler said.
Of the seven state Supreme Court justices, five have been appointed by DeSantis. Some have known anti-abortion views.
Staver, the chairman of the conservative anti-abortion group Liberty Counsel, said the recent case striking down judicial waivers was 'perhaps the first step' in the direction of looking at a right to life for fetuses in the Florida Constitution — as well as affirming parental rights more broadly.