Florida Republicans Came Up With a New Lie About History to Support Extreme Abortion Bans

May 29, 202511:45 AM

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A new case in Florida is set to undermine what little abortion access remains in the state, and it’s all based on a lie. Florida already bans abortion six weeks after a person’s last menstrual period, but for conservative judges in the state, that isn’t enough. The architects of State v. Uthmeier want to make it impossible for minors to ever get an abortion without parental approval—or potentially for any Floridian to get an abortion at all. Its ruling ignores two important historical lessons.

The case is a prime example of judges making a major case out of a teenager’s personal struggles. It began when Jane Doe, who is 17, learned she was pregnant and went to court for what is called a judicial bypass. While more than 30 states including Florida require minors to notify their parents or get their approval before an abortion, the U.S. Supreme Court in 1979 ruled that parental consent laws could be constitutional only if they offered a judicial bypass. This requires a hearing that takes place without the involvement of parents where a minor can attempt to convince a judge that abortion is in her best interest or that she is mature enough to make the decision on her own. Most minors will tell a parent before seeking an abortion, but some will not, often because they believe that the parent will force them to continue a pregnancy, or they fear being abused, kicked out of their home, or cut off financially.

The Supreme Court overturned Roe v. Wade in 2022, but states that permitted some abortions often still kept their judicial bypass laws in place.

The Florida intermediate appellate courts have been taking aim at the state’s bypass law since last year. Then, a minor failed to convince a trial judge she was mature enough to make her own decision. When she appealed, the 1^st District Court held that it couldn’t hear the case because there was no opposing party. That’s because bypass hearings are confidential, designed to protect minors whose parents might harm them if they learned of the proceedings. A dissenting judge said that the whole bypass scheme violated parents’ constitutional rights.

When Jane Doe’s case came to the 5^th District Court of Appeals, the court was ready to hold just that. The judges asked the state’s Republican attorney general to file a friend-of-the-court brief, and he then intervened in the case, asking the judges to rule the bypass option unconstitutional. In a decision last week, they obliged, holding that the judicial bypass violated parents’ rights under the state constitution. The court stressed that, at common law, parents long had the right to control their children’s medical care. At a minimum, the court reasoned, parents had a right to be present and offer their own arguments before their child could get an abortion.

The first problem with the court’s decision is that it is just plain wrong about our history. Our own research has shown that common law traditions on when parents got to make decisions for their kids were complicated and messy. While the common law gave fathers an almost absolute right to control their children’s labor, in other areas, including medical decisions, courts often allowed older minors to make their own choices. The key was whether a decision could advance a child’s well-being. In the words of Pennsylvania Supreme Court Justice Jasper Yeates in a case involving a minor’s enlistment in the Navy, minors could enter into agreements “which may tend to their benefit.”

Such benefits should be obvious in the realm of reproductive rights. Teens have a twofold higher risk of death from pregnancy and birth than adults. Adolescent mothers are also far less likely than their peers to finish high school, more likely to experience mental health problems and poverty, and more likely to live in socially and economically disadvantaged communities. Choices about pregnancy are the type of decision that courts at common law would allow mature minors to make for themselves.

The 5^th District’s ruling ignores a second historical lesson: Some teenagers just won’t notify their parents, no matter the consequences. Studies suggest that notification requirements don’t significantly impact sexual activity or contraceptive use, but they do lead more adolescents to become parents. It was precisely because of this kind of harm, our research shows, that states began to roll back laws requiring parental involvement in cases involving sexually transmitted infections and birth control in the second half of the 20^th century. The Florida courts could return us to a regime in which the desires of a small group of parents carry more weight than the well-being of minors themselves.

The strangest part of the decision is that none of this was necessary to resolve the case. The trial judge and 5^th District both found that Jane Doe wasn’t mature enough to make her own decision. That could have been the end of it. But the 5^th District is setting up the Florida Supreme Court to announce a general right for a parent to know about any medical procedure a minor receives. That would apply not just to abortion but to birth control, treatment for sexually transmitted infections, and gender-affirming care. In the past, we’ve seen minors avoid doctors to dodge their parents, even when facing STIs with potentially debilitating effects. That could happen again in Florida.

And it may not just be about minors’ access to medical care. In Florida, the court has rooted parental rights in Article I, Section 2 of the state Constitution. In the past, three of the Florida Supreme Court’s seven justices have already written that this part of the Constitution also recognizes fetal rights. A fourth, Chief Justice Carlos Muniz, has asked in oral argument “whether “the term ‘natural person’ ” in the Florida Constitution “as a matter of ordinary meaning, include[s] the unborn.” That suggests that a majority of the court’s conservatives may be ready to hold that the state Constitution protects rights from the moment an egg is fertilized. That could mean even Florida’s six-week ban violates fetal rights, as might the state’s narrow exceptions for rape and incest. If this case gives the Florida Supreme Court an opportunity to interpret Article I, Section 2, the justices might go far beyond parental rights.

It’s been common to see Republicans claim to act in the name of parents. But as in cases like Doe, these laws use the idea of protecting parents to advance a broader agenda of eroding reproductive rights for all. That’s why the 5^th District looked for any chance to get a major case to the state Supreme Court. The judges know that the fate of legal abortion is really on the line as much as the future of minors’ medical care.