Florida appeals court drags feet on abortion consent ruling

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An appeals court Thursday asked the Florida Supreme Court to take up a potentially far-reaching issue about minors who seek to have abortions without notifying and getting consent from parents or guardians.

The request, known as certifying “questions of great public importance” to the Supreme Court, came after a three-judge panel of the 1st District Court of Appeal last month dismissed an appeal by a minor seeking a waiver from a parental notification and consent requirement in state law.

The Jan. 3 ruling appeared to be a first of its kind because the panel said it did not have legal jurisdiction to decide the case. The ruling said the case lacked a necessary “justiciable controversy” because it did not have an “adverse party.” Such an adverse party could have been a parent or guardian of the minor.

“This appeal comes to us with only the minor’s interests presented to the court,” said the ruling, written by Judge Lori Rowe and joined by Judges Thomas Winokur and Brad Thomas. “And without representation of the interests of the parents — the parties whose rights are directly implicated under the parental notification and consent law. Indeed, the appeal comes to us with no appellee (a respondent in an appellate case) at all. Under these circumstances, there is no justiciable controversy for us to adjudicate.”

Rowe acknowledged that the ruling departed from how appeals courts have handled such cases in the past, when the courts have issued rulings about whether waivers should be granted.

Lawmakers included a process in state law for minors to seek waivers in circuit courts and, if they are unsuccessful, to go to appeals courts.

In a two-page order Thursday, the panel asked the Supreme Court to decide, in part, whether an appeals court may “exercise appellate jurisdiction over a trial court’s ruling denying a judicial waiver under (the state law) in the absence of an adverse party in the appeal?”

The order also said the Tallahassee-based appeals court denied a request for a hearing before the full court in the case — what is known as a rehearing “en banc.” It did not provide an explanation.

The minor in the case, identified by the pseudonym Jane Doe, went to the appeals court after Leon County Circuit Judge Lance Neff turned down her request for a waiver.

The Jan. 3 ruling did not provide details about the minor, such as her age, or the reasons that Neff ruled against her. A concurring opinion by Thomas, however, said the minor received assistance from her boyfriend and his mother in seeking to have an abortion without her parents getting notified.

Records and court proceedings in such cases are confidential.

While he agreed with the main ruling, Thomas’ concurring opinion indicated he thinks parents’ rights are being violated.

“Without notice and without an opportunity to be heard, the minor’s parents are deprived of the most fundamental liberty interest recognized in law: the fundamental right to care for and raise their daughter, to advise and counsel her regarding this decision,” Thomas wrote.

Florida voters in 2004 approved a constitutional amendment that cleared the way for the Legislature to pass a law requiring that parents or guardians be notified before minors have abortions. Lawmakers in 2020 added to that with the consent requirement. The law has retained a waiver process.

The notice-and-consent issue has long been controversial, with supporters of the requirements saying minors are not mature enough to make abortion decisions. But opponents have argued, for example, that some minors could face issues such as abuse if their parents found out they were pregnant.

Waiver cases reaching appeals courts are relatively rare. But a different panel of the 1st District Court of Appeal on Dec. 15 took up and ruled in such a case, rejecting a waiver request from a Calhoun County minor.