TEXT :: In 1999, the Florida Legislature passed the Parental Notice of Abortion Act (the Act), which required minors seeking an abortion to either notify a parent prior to the procedure or obtain court approval to waive parental notice. A minor choosing the latter option must demonstrate to a court that she is either mature enough to make the decision or that, despite a court’s finding that she lacks sufficient maturity, parental notification is clearly not in her best interest.
The statute has never been enforced. Pro-choice activists quickly filed suit in circuit court and obtained an injunction to enjoin enforcement of the Act. The circuit court ruled that the Act violated a minor’s right to privacy under the Florida Constitution. The First District Court of Appeal reversed, finding that although the Act interfered with a fundamental right, it advanced a compelling state interest and was therefore valid. The Supreme Court of Florida granted a petition for discretionary review, and, recognizing that the Florida Constitution contains a broad right of privacy applicable to minors, HELD, that the Act was unconstitutional because it failed to further a compelling state interest.
The Florida Constitution declares that “[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life.” As interpreted by the Supreme Court of Florida in Winfield v. Division of Pari-Mutuel Wagering, this enumerated right is fundamental and was intended to be much broader than any privacy right guaranteed by the United States Constitution. The state may not infringe upon a fundamental right unless it does so to advance a compelling interest through the least intrusive means. In a constitutional challenge, the state bears the burden of demonstrating that its actions meet this test. Any state infringement upon the right to privacy, regardless of the class of persons involved, should be analyzed under the Winfield standard.
In Winfield, the first case to interpret the privacy provision, state officials issued subpoenas to financial institutions requesting access to petitioners’ bank records. Petitioners, private citizens, were not informed of the investigation. When they discovered that their records had been subpoenaed, petitioners filed suit alleging that the state unlawfully violated their privacy rights. The court held that although the compelling interest standard provides strong protection for fundamental rights, the standard does not create an absolute prohibition against state intrusion. Thus, although Floridians have a reasonable expectation that their banking records will remain shielded from public view, the state has a compelling interest in investigating gambling in the racing industry. By issuing subpoenas to obtain records, the state utilized the least intrusive means of achieving its interest.
The broad, enumerated right to privacy, and its privileged status based on Winfield’s compelling state interest standard, was extended to minors in In re T.W. In that case, a parental consent statute required minors to seek parental consent or obtain court approval for an abortion. Since the language of the constitutional amendment provides that the right extends to “‘[e]very natural person,’” the court found that this necessarily included those under the age of eighteen. Although the statute failed to conform to the requirements of federal abortion decisions, the court also acknowledged that, in the case of minors, the state might have additional interests that necessitate a departure from prior United States Supreme Court holdings. Notably, the state has an interest in protecting minors and facilitating family autonomy.
To determine whether these interests were compelling, the court looked to the legislature’s treatment of minors in similar laws and found vast inconsistencies. Because of the lack of concern for the treatment of minors in other medical situations, the court found the state’s interest in protecting minors by requiring parental consent and involvement insufficiently compelling. The state’s interests in protecting vulnerable minors and promoting family harmony, though significant, did not support an infringement on a minor’s right to privacy. After Winfield and T.W., it seemed that all infringements on privacy were to be analyzed under strict scrutiny. However, this clear rule would not stand for long.
The court later retreated from its expansive interpretation of Florida’s privacy right and signaled a departure from the Winfield test five years later in Jones v. State. In that case, adult men convicted of sexual battery against female minors challenged the state’s statutory rape law as an unconstitutional infringement on the minor’s right to privacy and thus to engage in consensual, intimate acts. Specifically, petitioners asserted that because T.W. recognized a minor’s right to make personal decisions that traditionally fall within the zone of privacy, a minor should also be protected in her decision to engage in sexual intercourse.
The Jones court rejected the defendants’ broad reading of T.W. and concluded that the earlier decision recognized only a limited right of privacy for minors, extending solely to the realm of abortion and other medical decisions. However, the court held that even if a minor had an expectation of privacy in the realm of sexual behavior, the state had a compelling interest in protecting children from sexual exploitation. As the majority and separate opinions noted, this interest is reflected in the state’s consistent enactment of laws to protect minors from mistreatment and is supported by secondary sources. Significant empirical research details the emotional and psychological damage that occurs when minors are seduced or forced to engage in sexual activity before they are ready.
The Jones court did not need to consider whether the challenged legislation advanced the state’s compelling interests through the least restrictive means because it declined to apply the test articulated in Winfield, preferring a less-stringent balancing test to determine whether the state’s intrusion was justified. Because the state was able to articulate a significant interest, the court concluded that the law was valid.
After Jones, minors enjoyed only a limited right of privacy, possibly confined to the abortion and medical arenas. This was markedly different from the broader right of privacy extended to adults, which included autonomy in making decisions about sexual behavior. Even more important, the Jones decision established that the right to privacy may be fluid or variable based on age or capacity, and suggested that state encroachments need not be analyzed under the Winfield standard.
In the instant case, the court signaled a return to the T.W. court’s recognition of a minor’s broad right of privacy, and re-emphasized that governmental infringements must endure strict scrutiny review. The instant court reiterated the finding in T.W. that the privacy amendment applies to minors: “[B]ased on the unambiguous language of the amendment: The right of privacy extends to ‘[e]very natural person.’ Minors are natural persons in the eyes of the law . . . .” Moreover, the instant court repeated its earlier rejection of federal privacy jurisprudence on a minor’s right to an abortion, noting that the Florida Constitution’s right to privacy does not permit a lesser standard of review for cases involving minors. It retained the stringent Winfield test as applicable to all infringements on the right to privacy.
The court reiterated that a minor’s rights under T.W. stem from her entitlement to the broader set of privacy rights applicable to adults and protected by the Florida Constitution. It also rejected the state’s argument that the parental notice requirement was a mere procedural step that left a minor’s right to an abortion virtually undisturbed. Instead, the right to privacy is not the eventual access to an abortion, but rather the Floridian’s general right of personal decision-making. The Act infringed on fundamental rights by forcing the pregnant minor to reveal her situation to her family or members of the judiciary.
Finding the privacy right applicable to minors, the court next considered whether the state’s interests were sufficiently compelling to warrant this encroachment. Citing T.W., the court noted that the state’s interests in protecting minors and advancing family autonomy are not compelling since the state continues to neglect these interests in related legislation. Because the Act did not advance a compelling interest, the court held it to be an unconstitutional intrusion on a minor’s privacy.
Concurring and dissenting opinions underscored the instant court’s cautious deliberation of a broader right of privacy for minors, particularly given the sensitive and controversial nature of activities normally protected by privacy jurisprudence. In his dissenting opinion, Justice Wells asserted that the majority should have re-examined T.W.’s underlying proposition that minors have a reasonable expectation of privacy from their parents when weighing the abortion decision. Since the Jones court held that minors do not have privacy rights equal to those vested in adults with regard to intimate sexual decisions, Justice Wells opined that perhaps the Supreme Court of Florida has already departed from T.W.’s most basic premise.
The instant court acted to safeguard every Floridian’s “right to be let alone,” by recognizing the privacy right’s continued application to “‘[e]very natural person’” and by rejecting erosions based on distinctions, such as age, that are not reflected in the constitutional amendment. While the Jones court was reluctant to find that minors have a vested right of privacy equal to that of adults, the instant court rejected that distinction and clarified the substance of privacy rights. This illumination means that lower courts will not need to waver when recognizing any category of Floridians’ broad and fundamental rights to privacy. By clarifying that the right does not merely guarantee eventual access to an abortion, the court reiterated the expansive nature of the Florida privacy right and ensured its continued application to a range of personal decisions.
April 2014, Vol. 66, No. 2
Sergio J. Campos, Class Actions and Justiciability
Andrew Guthrie Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules
Alberto R. Gonzales & Amy L. Moore, No Right at All: Putting Consular Notification in its Rightful Place After Medellin
Kevin J. Lynch, The Lock-in Effect of Preliminary Injunctions
Anne R. Traum, Using Outcomes to Reframe Guilty Plea Adjudication
Katrina Wyman & Nicolas Williams, Migrating Boundaries
Stephen E. Ludovici, Rule 60(b)(4): When the Courts of Limited Jurisdiction Yield to Finality