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Abortion bans may violate state constitutions

For decades, anti-abortion lawmakers in Florida have had little success restricting access to abortion because of a right-to-privacy clause in the state constitution that its supreme court, and voters, say protects the right to the medical procedure.

That language is once again at the center of a lawsuit seeking to prevent the state from banning 15-week abortion now that the Supreme Court has given states the green light to legislate the issue locally with its decision to overturn roe v. calfthe historic 1973 ruling that legalized abortion throughout the country.

And as the legal battle over abortion rights moves to the states, lawyers for abortion providers are relying on similar arguments that state constitutions protect the right to privacy and that the right to abortion is Some of that in lawsuits against jurisdictions that have moved quickly to ban the procedure outright or early in pregnancy.

“[Privacy rights are] really integrated because the right to make decisions about your body and your life is fundamental to orderly government and that’s what a constitution is,” said Amy Myrick, senior attorney for judicial strategy at the Center for Reproductive Rights.

As of Tuesday, the center, the ACLU and Planned Parenthood have filed legal challenges in 11 states to block enforcement of the bans in a post-war period.roe world. Of those cases, at least six, including in Mississippi, Kentucky and Idaho, incorporate arguments that bans enacted or expected to go into effect violate individuals’ right to privacy, whether that right is express or inferred. by the courts. So far, courts have temporarily blocked the bans in Louisiana, Kentucky and Utah, allowing clinics in those areas to resume abortion care — for now. Trial courts also temporarily stopped Texas and Florida from enforcing their abortion bans, but those orders have since been stayed on appeal.

like in roe, where the Supreme Court found that while the right to privacy is not in the U.S. Constitution, is implicit in, and protects the right to abortion, courts in some states have interpreted their constitutions to protect the right to privacy experts told BuzzFeed News. And that protection is often much broader at the state level than it is at the federal level.

“The federal constitution is a floor, but it is not a ceiling, and state constitutions can and often do provide greater protection for their citizens,” said Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project.

For example, the Mississippi Supreme Court in 1998 upheld an earlier decision that “no aspect of life is more personal and private than that which has to do with one’s sexual organs and reproductive system,” holding that ” The state constitutional right to privacy includes an implied right to choose whether or not to have an abortion.” That opinion “confirms very clearly that the Mississippi Constitution independently protects the right to abortion,” said Hillary Schneller, a senior attorney with the Center for Reproductive Rights, which is representing the Jackson Women’s Health Organization in a lawsuit challenging the called state activation law. that prohibits almost all abortions, as well as a law that prohibits the procedure at six weeks of pregnancy.

No ban has yet been enforced, allowing Jackson Women’s Health, the only remaining abortion clinic in the state and the provider at the center of the case that led to roein the fall, to continue providing care before 15 weeks of pregnancy.

“Our goal in this case is to buy every hour, every day, so they can continue to do so,” Schneller said. “Every day the clinic is able to remain open and providing abortion services protects the health and lives of Mississippians and we look forward to ensuring that for as long as possible.”

The idea of ​​enshrining privacy protections gained momentum in the 1970s, around the time that roe it was decided, due to a variety of concerns about invasions of people’s privacy, including digital privacy issues.

“This was an era where there was a kind of early digitization and abuse of digitization,” said Mary Ziegler, a law professor at the University of California, Davis, and an expert on the legal history of reproductive rights.

In Montana and Alaska, which considered privacy rights during constitutional conventions, some delegates discussed abortion as part of a broader right to privacy that encompasses both private decision-making and privacy around records and technology, Myrick said. But in other states like Florida, which passed a constitutional amendment guaranteeing the right to privacy in 1980, it was unclear whether the measures were designed to protect abortion.

“The 1980 debate didn’t really talk much about abortion,” Ziegler said, referring to the Florida amendment. “It was also clearly not about abortion.”

Because roevoters in theory would have known at the time that abortion was identified with the right to privacy according to the state Supreme Court noted in previous sentences about the topic. And in 2012, Florida voters rejected a ballot measure which sought to exclude abortion from the state’s constitutional right to privacy.

Still, Governor Ron DeSantis has kept arguing that Florida’s right to privacy does not protect abortion. After a circuit court judge said last week he would issue an order blocking the state’s 15-week ban, DeSantis voted to ask the Florida Supreme Court to overturn his precedent. “The fight for life is not over,” his office said.

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