DeSantis says abortion amendment ‘overrides’ Florida parental consent laws. Is he right?

When outlining why he thought Florida voters would buck the national trend and reject a November ballot initiative securing access to abortions, Gov. Ron DeSantis said last week that the amendment “overrides our parental consent laws.”

Is he right?

The answer will be determined by the courts, said Barry Richard, an attorney based in Tallahassee who practices constitutional law.

“That’s his opinion, which he’s entitled to, but it’s not the law until the court says it,” said Richard in an interview. “The laws stay on the books until a court declares the particular law to be invalid.”

DeSantis’ office did not respond to a request for comment as to exactly how Amendment 4, the Right to Abortion Initiative, would override state laws like parental consent.

But what’s clear from the ballot summary language is that it explicitly protects a different section of the state constitution that requires parents or guardians to be notified before their child has an abortion. And it’s silent on other Florida laws regulating abortions, such as a 2020 state law requiring parents to give consent to the medical procedure before a child can access it.

Democratic and Republican lawmakers disagree on how likely a court challenge to that 2020 parental consent law would be should the abortion-rights ballot initiative pass in November. Lawmakers across the aisle also disagree over the impact it would have considering how the state’s requirement that parents be notified first has been implemented in Florida.

WHAT DOES THE AMENDMENT SAY, AND NOT SAY?

When Floridians go into their voting booths on Nov. 5, they will see the following ballot title for the abortion initiative: “Amendment to Limit Government Interference with Abortion.”

That title will be followed by this summary language: “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

Sen. Erin Grall, a Vero Beach Republican and attorney who sponsored Florida’s 2020 parental consent law in the House, told the Herald/Times she thought “any court in Florida would have a difficult time upholding our parental consent statutes if this passes because of the word ‘restrict’ in the amendment.”

And she said that the specific exception for parental notification combined with the broad “no law shall” language made her wary there would be room for additional regulation by lawmakers after it passed.

“That’s what I’m trying to highlight, is how extreme of a position this amendment is,” Grall said.

But Rep. Anna Eskamani, an Orlando Democrat who is the abortion expert for her party in the Florida House, cast doubt on whether anyone would challenge the parental consent laws, pointing out that they hadn’t been challenged yet, even though there had been legal precedent to do so prior to the Florida Supreme Court’s April 1 ruling.

“I don’t know anyone planning to do that to be honest,” said Eskamani on Friday. “There’s always a distinction between laws that impact adults and minors, especially with this court.”

And in practical terms, Eskamani, who used to work at Planned Parenthood, said there was little daylight between parental notification and parental consent in the first place.

“Before consent, a parent had to sign a paper that they were notified, which is basically still consent,” Eskamani said. “If you wanted to block access for your minor, you simply wouldn’t sign.”

Eskamani added: “When I worked at Planned Parenthood, we required that notification form to be notarized. You can’t just say you told a parent. You need to prove it.”

THE HISTORY OF PARENTAL CONSENT IN FLORIDA

The then-Democratically controlled Florida Legislature first passed a law to require minors obtain parental consent before receiving an abortion in 1988.

This law was overturned by the Florida Supreme Court in 1989 in a landmark case, In Re: T.W., on the grounds that the law violated the state’s explicit constitutional right to privacy.

In 1999, after Republicans assumed control in Tallahassee, the Legislature passed a related law requiring parents be notified before their child has an abortion procedure. It was overturned by the state Supreme Court under the right-to-privacy legal precedent established by the abortion-privacy case, In Re: T.W.

So, in 2004, the Legislature referred a constitutional amendment to the ballot that would essentially carve out notification from the abortion-privacy ruling. That amendment passed with 64.67% and is in the state’s constitution today under Article X Section 22: Parental notice of termination of a minor’s pregnancy. This constitutional provision is what the amendment language speaks to when it states: “This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

Parental notification was codified into state law the following year in 2005 and has been updated several times since. In 2019, before parental consent was passed, the law required a physician to either talk to a parent or guardian 48 hours before the procedure or, when that wasn’t possible, send a letter notifying them 72 hours before the procedure. That notice could be waived in certain circumstances, including if the parent or guardian did so by signing a notarized form.

Even though the 1989 abortion-privacy case still stood as legal precedent, in 2020 Florida Republican lawmakers again passed a parental consent law, which is on the books today, and was never challenged.

Two years later, anti-abortion activists received two gifts in Florida. On June 24 2022, the U.S. Supreme Court overruled Roe v. Wade, which since 1973 had federally protected access to abortions until the point of viability, around 24 weeks. And then, roughly five months later, state elections delivered Florida Republicans supermajorities in both the House and Senate.

That year, Republicans passed a 15-week ban on abortions. It was challenged under the abortion-privacy case in the summer of 2022. In 2023, Republicans passed a six-week ban, even though the 15-week ban was still being litigated.

That’s the history that leads us to where we are today.

WHAT HAPPENED LAST WEEK

Last week, the conservative-leaning state Supreme Court dropped a couple of legal bombshells. It overturned the abortion-privacy case to uphold the state’s 15-week abortion ban, triggering the state’s 2023 six-week abortion ban to go into effect next month.

But it also approved the Florida abortion-rights initiative, Amendment 4, to go on the November ballot, putting the question of access to the medical procedure directly to voters.

Senate Minority Leader Lauren Book, a Davie Democrat who leads on abortion in her chamber and supports the abortion-rights ballot initiative, said she was in favor of protecting parental notification in Florida because “there’s a place for that.”

“While, I think, the right is trying to cast this as extreme, dangerous, horrific … parental notification is something that’s important and isn’t touched,” said Book. “But we still want to restore rights to women to have the medical freedom to make decisions for their own bodies.”

Regarding parental consent, Book echoed Richard in saying the amendment, if passed, wouldn’t “automatically wash the books” of that specific state law.

“But I do think that we’re going to find ourselves in litigation,” Book said.

This story was originally published April 8, 2024 at 5:16 PM.