By Noreen Marcus, FloridaBulldog.org
The Florida Supreme Court has been laying the groundwork to end abortion in Florida and it appears to be stepping up this effort now that Roe v. Wade is doomed.
Unlike the U.S. Constitution, Florida’s state constitution explicitly protects privacy in Article I, Section 23: “Right of Privacy – Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.”
This 1980 amendmentcould be invoked to safeguard abortion in Florida if and when the U.S. Supreme Court overturns Roe v. Wade. The state Supreme Court applied its powerful language to abortion 33 years ago.
“Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy,” Justice Leander Shaw wrote in the landmark 1989 ruling In re: TW. “We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime.”
But the present Florida Supreme Court, with its conservative supermajority, seems to regard the state’s freestanding right of privacy as an obstacle to achieving the goal of ending abortion in the state.
SOURCE: JUSTICES ‘DRAFTING SECRET MEMOS’
The justices “are writing memos about giving [Gov. Ron] DeSantis and the Legislature everything they want on abortion,” said a court insider who communicated with Florida Bulldog on condition of anonymity because of the topic’s sensitivity.
“These right-wing justices already are drafting secret memos about how to change that [In re: TW ruling] so abortion can be illegal in Florida again,” the insider wrote last week. “One reason they got rid of Justice [Alan] Lawson was because he thought it was a bad idea to do that.”
Lawson, who was passed over for chief justice despite being next in line for the job, recently announced he will retire on Aug. 31, shortly after Justice Carlos Muniz takes the helm. Muniz had a lengthy resume as a Republican operative but no judicial experience when DeSantis appointed him to the Supreme Court in 2019.
Lawson, 60, could have served on the court another 15 years before reaching the mandatory retirement age of 75. He said he’s leaving to pursue a range of interests including “family, health and fitness, spiritual growth and development, friends, the outdoor sports that we enjoy, and charitable work in the United States and abroad.”
Neither Lawson nor court spokesman Paul Flemming responded to emails from Florida Bulldog seeking comment.
FROM FEWER LEGAL ABORTIONS TO NONE?
Florida will soon enforce a Mississippi-style law that bans abortion after the 15th week of pregnancy with no exceptions for rape or incest.
The bill DeSantis signed into law last month has exemptions that apply when a pregnancy poses “serious risk” to the mother, or, when two doctors confirm in writing their diagnosis of a fatal abnormality in a fetus. The law will take effect on July 1.
Anti-abortion advocates are pressuring DeSantis and the Florida Legislature to go further and join 13 states that will automatically outlaw abortion as soon as the U.S. Supreme Court overturns Roe v. Wade. The issue may be added to the agenda for a special session in Tallahassee later this month, Politico Florida reported.
Assuming the Legislature passes an automatic ban, DeSantis signs it and Roe is reversed as expected, pro-choice groups will surely file a court challenge in Florida. Then the ban will wind up in the Supreme Court for the justices’ review and final say on whether and how to apply the state’s privacy guarantee.
“I would expect the court to uphold any anti-abortion law the Florida Legislature chooses to send it,” said Robert Jarvis, a constitutional law professor at Nova Southeastern University in Davie.
30-YEAR ANTI-ABORTION PUSH SUCCEEDS
Activists have been trying for 30 years to undermine Florida abortion law by shifting the court rightward, he explained.
“Back in 1992, when she was running to retain her seat on the Florida Supreme Court, Chief Justice Rosemary Barkett, the court’s first female justice, was targeted by groups like Florida Right to Life because of her support for abortion,” Jarvis said.
“Barkett held onto her seat by a vote of 61 percent to 39 percent but ever since, conservatives have been working to reshape the court,” he said.
They have gained traction in recent years. DeSantis is expected to name a fourth conservative justice to replace Lawson, meaning the governor will have installed a majority of the seven-member panel.
In this area he’s outdoing former President Donald Trump, whose three additions to the U.S. Supreme Court – all vetted, like DeSantis’s picks, by the Federalist Society – fall short of a majority of the nine D.C. justices.
POLLS: ENDING ABORTION UNPOPULAR
Yet recent surveys suggest that the idea of ending abortion is unpopular with most Floridians.
In February, when the state House passed the bill that became the new abortion law, 58 percent of a sample of registered voters said they opposed bans, while 34 percent supported them, University of North Florida pollsters told the Tampa Bay Times.
“The majority of people polled believed abortions should generally be legal and said they opposed potential bans,” the Times reported.
As recently as February 2017, a majority of Florida Supreme Court justices supported abortion. The court struck down a law that required a woman seeking an abortion to wait at least 24 hours between meeting with a doctor and obtaining the procedure.
Justice Barbara Pariente quoted her late colleague Justice Shaw’s statement from In re: TW that the state privacy provision “is clearly implicated in a woman’s decision of whether or not to continue her pregnancy.”
DISSENT IN ABORTION CASE PREVAILED
But the dissent in that case, Gainesville Woman Care v. State, said more about where Florida abortion law was heading. It was written by now-Chief Justice Charles Canady, who in his previous career as a U.S. congressman coined the incendiary term “partial-birth abortion.”
“This Court has no evidence before it that a twenty four-hour waiting period is a significant restriction on the right to abortion,” Canady wrote. “All we have are the pleadings – which do not constitute evidence – and [a doctor’s] speculations that a duly-enacted law additionally burdens the right to abortion.”
While the Supreme Court went on to switch from liberal to conservative, the case continued wending its way through the court system. Finally, on April 25, the waiting period law took effect–seven years after it was enacted.
Last Tuesday the first draft of an opinion by Supreme Court Justice Samuel Alito that overturns Roe v. Wade was leaked and published by Politico.
The reaction was tumultuous, with Republicans and anti-abortion groups highlighting the leak and Democrats and pro-choice groups focusing on the contents of Alito’s opinion. Protests and counter-demonstrations erupted across the nation.
HIGH COURTS REVERSE PRECEDENTS
Now quickly erected “unscalable” metal fencing encircles the U.S. Supreme Court building across the street from the U.S. Capitol in central Washington, D.C.
Janet Ferris, a former Tallahassee circuit court judge, said she sees a similar philosophy at work in rulings by the U.S. Supreme Court and the Florida Supreme Court.
“These decisions, the way they’re coming down, frighten me,” Ferris said. “It’s putting women in a different class and saying, ‘We don’t care what your needs are.’ ’’
Both Alito in his draft opinion and the Florida Supreme Court in recent opinions have shown disrespect for certain precedents, earlier rulings that defy their ultra-conservative approach to the law. Alito states that Roe should be overturned because it was wrongly decided 50 years ago.
Since 2019 the Florida Supreme Court has, for example, reversed its own requirement for unanimous jury verdicts in capital cases. saying the case that set this standard was wrongly decided by the liberal majority four years earlier.
At that time the court acted “without legal justification” and ignored “decades of settled Supreme Court and Florida precedent,” the unsigned opinion states. “Under these circumstances, it would be unreasonable for us not to recede from [the earlier ruling’s] erroneous holdings.”
LABARGA SLAMS ‘DRASTIC CHANGES’
Justice Jorge Labarga, the court’s only remaining moderate, protested in a December dissent that “the majority’s decisions of late have ushered in a series of drastic changes in civil, criminal and rulemaking contexts.”
Observers wonder if the courts, by denying the link between privacy and abortion, will encourage assaults on other privacy-based rights such as birth control and interracial and same-sex marriage.
“We children of the ’60s have witnessed the evolution of so many rights and now the retraction of the same,” said Edith Georgi, a retired Miami-Dade public defender.
“We are aghast. Where did the hope and idealism go? How to get it back?” she asked.
“The very courts we celebrated have betrayed us by not honoring their own historical precedent again and again.”