Last week, the Florida Fifth District Court of Appeal ruled a state law allowing minors to obtain a judicial bypass and get an abortion without parental consent is “unconstitutional.” The ruling upheld a lower court’s decision that rejected a 17-year-old girl’s request to have an abortion without her father’s consent. When the minor appealed, Florida Attorney General James Uthmeier intervened and argued the law conflicted with the constitutional rights of parents.

The three-judge panel agreed and determined that Florida’s judicial waiver process, enacted as part of the state’s 2020 “Parental Notice of and Consent for Abortion Act,” violates the due process rights of parents under the Fourteenth Amendment and parental rights under the Florida Constitution. The panel also cited the U.S. Supreme Court’s 2022 Dobbs decision and a Florida Supreme Court’s 2024 decision as “repudiating” the state’s “judicial-waiver regime” by respectively holding there is no federal or state right to an abortion.

The court’s ruling states that without any constitutional right to an abortion, “any deprivation of parents’ due-process rights” for notification and consent “can no longer be justified,” especially in a “secret abortion” that removes fit parents from the decision.

“Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state,” wrote Judge Jordan Pratt, authoring the majority opinion. “At a minimum, the Fourteenth Amendment demands notice and an opportunity to be heard before a presumptively fit parent can be deprived of his or her right to be informed of and make medical decisions, including abortion decisions, for his or her child. By design, Florida’s maturity and best-interest judicial waiver procedures afford neither.” 

The judicial waiver set up a process where unemancipated minors could seek a judge’s approval to bypass parental consent if they displayed sufficient decision-making maturity and presented “clear and convincing evidence” that the consent requirements were not in their best interest. The appeals court noted that Clay County Circuit Judge Angela Cox, who questioned the 17-year-old girl, rightly determined that the girl’s lack of “emotional development and stability, her credibility and demeanor as a witness, her ability to accept responsibility, and her ability to assess the immediate and long-range consequences of her choices” warranted rejecting a judicial waiver.

The appeals court panel also certified the case as “a question of great public importance” for the Florida Supreme Court essentially expediting any higher review of their decision. 

The court stated that it takes “comfort” in the Florida Supreme Court having jurisdiction to review the decision, given that it “held and declared invalid the maturity and best-interest judicial waiver regimes of [Florida law]” over a conflict with the due process rights of parents.

At least 34 states allow minors to petition a judge for a judicial bypass to get an abortion without parental consent. 

Liberty Counsel Founder and Chairman Mat Staver stated, “Florida’s judicial waiver process for a minor’s abortion directly infringes on the constitutional rights of parents to make decisions in the best interests of their children. Under the U.S. and Florida Constitutions, there is no right to kill an unborn child, and parents need to be involved to counsel their children and stand up to protect the most vulnerable among us. The womb needs to become a safe place again.”