Florida Supreme Court’s abortion ruling is likely to come after the legislative session

The Florida Supreme Court likely will not rule until after this year’s regular legislative session in a high-stakes case about the constitutionality of a 2022 law that prevents abortions after 15 weeks of pregnancy.

Justices on Monday formally agreed to take up the case and issued a schedule that indicated it will be at least until late April before all briefs are filed. The court also did not set a date for oral arguments, which, if held, would happen after the briefs are submitted.

Speculation has long swirled about whether the Republican-controlled Legislature and Gov. Ron DeSantis will place additional restrictions on abortions, But Senate President Kathleen Passidomo, R-Naples, said in November that lawmakers would wait to make a decision until after the Supreme Court acts on the challenge to the 15-week law — an approach that DeSantis also appeared to suggest in August.

“We want to make sure that what we have done will stick,” DeSantis said at the time. “Then, we’ll work with the Legislature, but I’ll tell you that 15 weeks was very difficult to be able to achieve. We were happy that we were able to achieve it. So, we look forward and welcome future endeavors, but we realize there is still a fight on the legal end on that.”

The annual legislative session will start March 7 and is scheduled to end May 5. Lawmakers also could take up the abortion issue during a special session.

An order released Monday by the Florida Supreme Court said plaintiffs in the case have until Feb. 27 to file an initial brief. The state will have 30 days after that to file an answer brief, and the plaintiffs then will have 30 days to file what is known as a reply brief. That would mean it would be late April before all three briefs are filed — and the order indicated the state might have another 30 days to file a “cross-reply” brief.

“Oral argument will be set by separate order,” Monday’s order said. “Counsel for the parties will be notified of the oral argument date approximately 60 days prior to oral argument.”

Seven abortion clinics and a physician, Dr. Shelly Hsiao-Ying Tien, filed the lawsuit June 1, arguing that the 15-week limit violates a privacy clause in the Florida Constitution that has long been interpreted to protect abortion rights. Leon County Circuit Judge John Cooper agreed with the plaintiffs and issued a temporary injunction against the law.

But the 1st District Court of Appeal overturned the injunction, ruling that the plaintiffs could not show “irreparable harm” from the 15-week limit. The Florida Supreme Court on Monday rejected a request by the plaintiffs for a stay of the appeals-court ruling — effectively meaning the 15-week limit will remain in place while the legal battle continues. Justices also issued the order to formally take up the case and set the schedule.

The case is important to future abortion legislation, at least in part, because of questions about the interpretation of the state constitution’s privacy clause. The plaintiffs point to more than three decades of legal precedent that has said the clause protects abortion rights.

But Attorney General Ashley Moody’s office has urged the Supreme Court to reverse the precedent.

“Florida’s Privacy Clause creates a right ‘to be let alone and free from governmental intrusion into the person’s private life,’” lawyers in Moody’s office wrote in one court filing. “That language is naturally read to limit governmental snooping and information-gathering — but not to establish a liberty to destroy unborn (or any other) life.”

If lawmakers decide to pass additional abortion restrictions, it remains unclear how far they might go. Passidomo has suggested the possibility of a 12-week limit with exceptions in cases of rape and incest — exceptions that were not included in the 15-week law. But she also has pointed to waiting for a Supreme Court decision.

“Everybody knows my position on the exception for rape and incest,” Passidomo told reporters in November. “I wanted to get that in the bill. When we did the 15 weeks, it didn't get in the bill. But there's really nothing to do until the Supreme Court rules.”

House Speaker Paul Renner, R-Palm Coast, was more circumspect last week about how the abortion issue will move forward.

“Life is important, so the timing of that is yet to be determined,” Renner said. “We have not finalized anything in that regard. We’ll continue talking to our members within our majority. We have a pro-life majority. When you break that down, we have people that want to be where we are, some people want to be much more in the direction of life, and in between. So, we’ll respectfully continue that dialogue at some point, if we have a bill.”

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