In re T.W.

Supreme Court of Florida
551 So. 2d 1186 (1989)

ELI5:

Rule of Law:

Under the Florida Constitution’s explicit right to privacy, a law infringing upon a woman's decision to have an abortion must be justified by a compelling state interest and be accomplished through the least intrusive means. A statute requiring parental consent for a minor's abortion fails this strict scrutiny test.

Facts:

T.W. was a fifteen-year-old, unmarried, and pregnant minor.
T.W. was a high school student who participated in extracurricular activities and worked twenty hours per week.
Due to her mother's serious illness, T.W. had assumed extra responsibilities at home, including caring for a sibling.
T.W. testified that informing her ill mother of the pregnancy 'would kill her' and expressed fear of physical or emotional abuse if she were required to ask her parents for consent.
She had completed a sex education course, viewed an instructional film on abortion, and discussed her decision with the child's father, who approved.
T.W.'s pregnancy was in the first trimester.

Procedural Posture:

T.W., an unmarried minor, filed a petition in a Florida circuit court (trial court) seeking a waiver of the statutory requirement for parental consent to an abortion.
The trial court appointed a guardian ad litem for the fetus and held a hearing.
The trial court ruled that the judicial bypass provision of the statute was unconstitutional but denied T.W.'s petition, requiring her to obtain parental consent.
T.W. appealed the denial to the Florida Fifth District Court of Appeal (intermediate appellate court).
The district court of appeal found the entire parental consent statute unconstitutional, quashed the trial court's order, and dismissed the petition.
The guardian ad litem appealed the district court's decision to the Supreme Court of Florida (the state's highest court).

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Issue:

Does a Florida statute requiring a minor to obtain parental consent or a judicial waiver before having an abortion violate the right to privacy guaranteed by Article I, Section 23 of the Florida Constitution?

Opinions:

Majority - Shaw, J.

Yes. The statute requiring parental consent for a minor's abortion violates the Florida Constitution's right to privacy. Florida's Constitution contains an explicit right to privacy that is broader and more protective than the one implied in the U.S. Constitution. This fundamental right extends to '[e]very natural person,' which includes minors. Therefore, any state intrusion upon this right must survive strict scrutiny, meaning the state must prove the law serves a compelling state interest and uses the least intrusive means. The state's asserted interests in protecting immature minors and preserving family unity are not compelling in this context, particularly because Florida law allows minors to consent to all other medical procedures related to pregnancy and childbirth. Furthermore, the statute is not the least intrusive means because its judicial bypass procedure fails to provide essential safeguards, such as a right to counsel for the minor and a requirement for a record hearing, which makes meaningful appellate review impossible and risks arbitrary denials.

Concurring - Ehrlich, C.J.

Yes. The parental consent statute is unconstitutional. I agree with the majority's reasoning that the statute fails strict scrutiny under Florida's right to privacy. However, I also believe the statute constitutes an unconstitutional delegation of legislative power to the judiciary. By failing to specify whether a petition should be deemed granted or denied if a judge fails to rule within the 48-hour timeframe, the legislature left a fundamental policy decision for the Court to make, which violates the separation of powers.

Concurring-in-part-and-dissenting-in-part - Overton, J.

No, the statute is not unconstitutional on its face. The Court has a duty to construe statutes as constitutional if reasonably possible. Instead of striking down the entire statute, the Court should have interpreted it to be consistent with the principles established by the U.S. Supreme Court in Bellotti v. Baird and cured its procedural defects through court rules. The right of privacy did not eliminate a minor's common law disability of nonage, and the legislature has the power to regulate a minor's capacity to consent to medical procedures.

Concurring-in-part-and-dissenting-in-part - Grimes, J.

No. The parental consent statute is constitutional. While the Florida Constitution protects abortion rights similarly to Roe v. Wade, it does not provide broader protection for minors than the federal constitution. The U.S. Supreme Court has consistently held that the state has a significant interest in protecting children, who are uniquely vulnerable and may lack the maturity for such a critical decision. This statute, with its judicial bypass option, properly balances the minor's rights with the state's legitimate interests and is constitutional under established federal precedent.

Dissenting - McDonald, J.

No. The statute is constitutional because the central issue is not privacy, but a minor's legal incapacity to consent to a medical procedure. At common law, a minor cannot form a contract, including one with a physician for a surgical procedure. The legislature has the power to grant minors the capacity to consent, which it has done for other medical services but explicitly excluded for abortion. Therefore, this statute is not an unconstitutional invasion of a pre-existing right but a permissive vehicle that creates a legal path for a minor to obtain an abortion she otherwise could not.

Analysis:

This case is significant for establishing that Florida's express constitutional right to privacy provides greater protection for abortion rights than the federal Constitution. By applying strict scrutiny to a parental consent law, the court set a high bar for any legislative restrictions on abortion in Florida. This decision insulates abortion rights within the state from shifts in federal jurisprudence, making the Florida Supreme Court a key independent arbiter of these rights. It ensures that any regulation of abortion must be narrowly tailored to serve a compelling state interest, a much more rigorous standard than the 'undue burden' test later used in federal law.

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