In the 2020 legislative session, the Florida Senate and House of Representatives will decide on two bills — HB 265 and SB 404, respectively, which would force minors to obtain parental consent before receiving an abortion. These forced parental consent bills represent an insidious challenge to abortion rights in Florida because, without context, they do not necessarily appear harmful or restrictive.
Many well-meaning adults might find it logical that a minor be forced to received parental consent or obtain a judicial bypass for an abortion. Proponents of the bills insist that abortion isn’t the issue, that they are seeking to protect parental rights. However, the parental rights argument is not being made in good faith. Instead, the Republican legislators supporting forced parental consent have demonstrated through words and actions that they are acting as part of a larger anti-choice agenda.
This is not the first time that the Florida State Legislature has tried to pass forced parental consent. Far from it. Bills were introduced in the 2019 legislative session and failed, and a forced parental consent bill passed into law in 1985, but was ruled unconstitutional by the Florida Supreme Court. Why? Because of section 23 of the Florida constitution, commonly known as the privacy clause.
Passed by Florida constituents as a referendum in 1980, the privacy clause guarantees that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein,” going above and beyond the privacy rights granted by the state constitution.
In 1989, the Florida Supreme Court ruled that a woman’s right to bodily autonomy — including abortion — is protected by the privacy clause. In their verdict, the court wrote that “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy.”[3] This set a precedent which remains vital to protecting abortion rights in Florida. For instance, section 23 was key to a court ruling stopping a mandated 24-hour waiting period before an abortion in 2016. Under the privacy clause’s current interpretation, abortion would remain legal in Florida even if Roe v. Wade was overturned by the US Supreme Court.
However, Governor Ron DeSantis (R), who as a candidate pledged “to sign legislation limiting access to abortion,” has appointed three conservative justices to the Florida Supreme Court. If this new Supreme Court is asked to decide the constitutionality of a forced parental consent law, it is likely that they will overturn the 1989 verdict and rule that abortion is not protected by the privacy clause, opening the floodgates to legislation limiting access to abortion.
The true purpose of the forced parental consent bills is therefore not to increase parental rights, but to take the first steps towards preventing safe and legal access towards abortion in Florida. For further proof that the arguments for forced parental consent are not being made in good faith, one needs only look to the politicians supporting HB 265 and SB 404.
Earlier this year, House Majority Leader José Olivia referred to pregnant women as “host bodies” five times during an interview. Olivia later apologized, but his language is indicative of how anti-choice legislators view women as mere vessels for reproduction.
Senator Dennis Baxley (R), a vocal proponent of forced parental consent, has twice in public interviews used language evoking the white nationalist “replacement theory”— that Caucasians in American and European are being “replaced” as the dominant racial majority by black and brown immigrants. In an interview with the Gainesville radio station WCJB, Baxely said: “You look at Europe, they’ve been under two percent birth rate and they’re not replacing themselves and so what’s happening is they’re migrating in a population as a workforce, who by the way does believe in having seven or eight children in a family, and they have no desire to assimilate to the current Western culture. They’re replacing that society.”Baxley echoes the language of white nationalists who seek to prevent white women from having access to birth control and abortions because they believe high birth rates are necessary to maintain a dominant white population. In addition to its inherent racism, this rhetoric is predicated on a conception of women as “host bodies”— broodmares whose only purpose in life is to reproduce.
Speaking at the Christian Family Coalition in August , Baxley was candid about the real agenda behind forced parent consent, saying “We have some new court members, we need another look at what the privacy clause means… in a way that could open the door for many other accomplishments.” Baxley implied that passing forced parental consent bills is intended to prompt a new Supreme Court ruling on the privacy clause, one that will make way for future restrictions on abortion.
Furthermore, the primary argument being made by supporters of forced parental consent — that it will protect Florida’s youth, simply isn’t supported by factual evidence. The Guttmacher Institute found in a 2012 study that “90 percent of 14-year-olds and 74 percent of 15-year-olds involve at least one parent or guardian in their abortion decision.” The 10% of minors that did not involve parents in their abortion decision “said they were afraid of being thrown out or abused by their guardian.”
Florida law already requires parents to be notified when a minor has an abortion. Just as young women are capable of making decisions about their own bodies, they are also capable of making decisions about when and when not to trust their parents. The reality is that not all Floridian youth have good relationships with their parents and no legislation can fix that. Forced parental consent will only place children with abusive guardians in further danger.
The forced parental consent bills do contain a judicial bypass, which theoretically allows minors to overrule their parents’ decision by obtaining a waiver from a judge. However, minors are not provided any assistance in navigating the Florida judicial system. A study conducted by If/When/How: Lawyering for Reproductive Justice found that, of Florida’s 67 counties, only 11 were prepared to offer instructions for minors on how to receive a judicial bypass. “Florida courts are overwhelmingly unprepared to answer questions about the judicial waiver process,” the report said, “court staff’s inability to provide accurate and unbiased information compromises young people’s right to abortion access.”
Unlike the extreme anti-choice legislation passed by state legislators in Alabama and Georgia, Florida’s forced parental consent bills do not pose an obvious challenge to abortion rights. As Senator Baxley himself said, “the issue of parents taking responsibility of their children that parental consent is an easy argument,” because it frames the conversation around parental rights rather than abortion rights. However, the simple truth is that forced parental consent and the privacy clause as it now stands, protecting Floridians’ access to safe and legal abortion, cannot coexist. The lawmakers pushing HB 265 and SB 404 know this and their actions are part of a larger pattern of limiting women’s bodily autonomy.
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