If Florida’s abortion rights amendment passes, courts will weigh parental consent question

Gov. Ron DeSantis, R-Fla., warned parents about a state abortion amendment that would expand legal access to abortion and overrule a six-week abortion ban that went into effect May 1.

In Naples, hours before President Joe Biden spoke in Tampa April 23 about abortion, DeSantis told a crowd that Biden was coming to Florida to support a constitutional amendment "that will eliminate parental consent for minors and that’s written in a way that’s intentionally designed to deceive voters."

The governor repeated this warning on April 30, calling it "an amendment that they wanted to go into Florida’s Constitution that will eliminate parental consent for minors."

"Why would you take away parental consent?" he asked.

The picture of how the amendment could affect parental consent is complex. The ballot measure needs 60% approval to take  effect. And if it is approved, the amendment itself says it "does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion."

But DeSantis’ warning is based on a prediction about what could happen to the parental consent law through legal challenges. 

That’s because the amendment stipulates that "no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health." Legal experts say this wording could lead advocates to challenge a 2020 state law that requires written parental consent before a minor undergoes an abortion.

But the consent law’s elimination isn’t a foregone conclusion — it would likely be decided by the courts. 

Adding one more wrinkle: Legal experts told us that, until April 1, parental consent requirements had been unconstitutional in Florida for decades. 

Here’s why DeSantis’ statement needs more explanation. 

The summary for Amendment 4 reads in full:

"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."

DeSantis and others argue that the language would eliminate the law requiring minors to get parental consent before an abortion. Minors can also seek a judge’s permission to obtain an abortion without parental involvement.

But legal experts told PolitiFact the amendment doesn’t spell the immediate end of parental consent for abortions in Florida.

"It’s possible that a person or group might sue to overturn the (parental consent) law, however, the case would be heard in state court and, ultimately, the Florida Supreme Court would decide the issue," said Aubrey Jewett, a political science professor at the University of Central Florida. 

Given the court’s conservative bent, Jewett said, it’s possible that it would uphold Florida’s existing law, even if the constitutional amendment passes. Justices could determine that parents have traditionally had a legal right to have a say in their children’s health care decisions, he said, and therefore still have a say here.

The amendment also stipulates that it "does not overrule the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion." This refers to Article X, Section 22 of the Florida Constitution, which requires parental notification before a minor seeks an abortion.

Bryan Griffin, a DeSantis spokesperson, told PolitiFact in an email that parental notification is not the same thing as consent. He referenced DeSantis’ April 17 news conference, during which DeSantis said the "notification is after-the-fact. The consent is obviously a condition precedent." The initiative’s language, however, as well as current Florida law, specifies that parents would be notified before an abortion takes place, not after.

"Minors do not have the same constitutional rights as adults do, and the Florida Constitution recognizes this in the abortion context in its provision that expressly allows the Legislature to require parental notification," said Quinn Yeargain, a Widener University assistant law professor and expert on state constitutional law. 

"While Section 22 only relates to notification, not consent, it still clearly indicates a desire in the Constitution to limit abortion rights for minors," Yeargain said.

The state’s 2020 consent law became enforceable only on April 1, when the Florida Supreme Court ruled that the constitutional protection of privacy didn’t apply to abortions.

A 1989 Florida Supreme Court case had invalidated an earlier parental consent law for minors seeking abortions on the grounds that it violated Florida's constitutional right to privacy. So, although DeSantis has a point that the initiative could eventually eliminate the consent requirement, Floridians until April had lived without it for more than 30 years.

"We don't know if parental consent will later be interpreted to be a delay or a prohibition on abortion under the amendment, but we do know that the parental consent requirement has been deemed unconstitutional since 1989" until now, said Louis Virelli, a Stetson University law professor.

RELATED: No, a Florida ballot measure wouldn’t ‘mandate abortion up to birth,’ as Gov. Ron DeSantis said