Ex-chief justice: Florida’s broad constitutional right to privacy should block abortion ban

By Noreen Marcus, FloridaBulldog.org

As the Florida Supreme Court waits for draconian abortion restrictions to reach its docket, lawyers are road-testing their arguments for and against the deeply divisive law.

The law’s survival depends on the elephant in the courtroom, Florida’s freestanding right to privacy. Voters amended the state Constitution to add this right in 1980.

The Florida Supreme Court’s interpretation of the privacy provision, laid out in a 1989 ruling that protects abortion, is at the heart of any serious discussion of state abortion law, according to former Chief Justice Harry Lee Anstead.

“Any court that has to decide that issue would have to confront our previous decision [In re: TW decision],” he told Florida Bulldog in an interview last week. “That’s the prevailing law in Florida no matter what the Legislature decides.”

Still, judging from recent history, today’s Florida Supreme Court will most likely endorse the abortion law Gov. Ron DeSantis signed six months ago. The ban after the 15th week of pregnancy makes no exception for cases of rape, incest or human trafficking.

SEPARATING ‘ABORTION’ FROM ‘PRIVACY’

It’s hard to argue a government-enforced ban is valid under established Florida law that defines privacy as an individual’s “right to be let alone.” But judges can change definitions, and the Supreme Court is expected to redefine privacy to mean only the right to keep certain information out of the public domain.

A legal theory called originalism that has gained popularity in recent years can be customized to explain the rewrite. Originalism is based on the idea that whatever a law’s drafter intended it to achieve should forever after determine how the law is interpreted and applied.

In a June 26 opinion column for the Tallahassee Democrat, anti-abortion crusader John Stemberger gave the Supreme Court the rationale it needs to narrow privacy law and end abortion protection. He used originalism-style analysis to make his point.

“The privacy amendment was birthed directly out of a nationwide debate over governmental intrusion into the private lives of citizens” after the Watergate scandal in the early 1970s, Stemberger wrote. He asserted the abortion debate that also was raging at the time had nothing to do with the amendment.

The Orlando attorney is a close friend of the present court. He attended the investitures of Justices Carlos Muniz and Jamie Grosshans and, like them, mingles in Federalist Society circles. Stemberger has effusively supported DeSantis’s Supreme Court choices, “which will have a positive effect on our state for decades to come,” Florida Daily quoted him saying in January 2019.

Early this year Stemberger and his Florida Family Policy Council scored a private tour of the Supreme Court building in Tallahassee with now-Chief Justice Muniz as their guide.An inside court source told Florida Bulldog the tour was perceived among courthouse staffers as a pre-victory lap for abortion opponents.

JUDICIAL ACTIVISM CUTS BOTH WAYS

Originalism is a method of analyzing laws as if they were carved in stone. Adherents reject the idea that a law, and especially a constitution, should be interpreted in a way that recognizes and accommodates change.

Most current members of the state Supreme Court say the “plain language” of a law or a court decision is the best guide to what the author intended. They trash liberal rulings that they contend show the “judicial activism” of the justices who preceded them.

For example, in January 2020 the Supreme Court reversed its own four-year-old precedent in a death penalty case. Four years earlier, the more liberal court had complied with an order from the U.S. Supreme Court to give greater weight to juries’ findings than to judges’ recommendations in death penalty sentencing.

In State v. Poole, the conservative justices accused their predecessors of ignoring “decades” of settled law. “Under these circumstances, it would be unreasonable for us not to recede” from “erroneous holdings,” the unsigned opinion says. 

But the current justices have been accused of doing the thing they condemn. Two prominent Florida newspapers are calling for voters to eject four conservative justices Nov. 8 because of their “radical activism.”

“I have never seen a court reverse its prior decisions in such a political way and such a disingenuous way,” Stephen Harper, an emeritus law professor at Florida International University, told Florida Bulldog after the Poole decision.

FRANCIS PRAISED ORIGINALISM, THOMAS

Originalism is closely tied to the conservative/libertarian Federalist Society and its followers, including DeSantis. The governor promotes Federalist Society-approved judges, and his appointees dominate the Florida Supreme Court.

They’ve shown that they’re well-schooled in the accepted orthodoxy.

At a public interview for her current position, Justice Renatha Francis expressed admiration for originalism and for Justice Clarence Thomas, one of originalism’s biggest fans on the U.S. Supreme Court.

In January Francis told the Judicial Nominating Commission that if she were chosen for the Supreme Court, she would “adhere to the original public meaning of the text” and make sure “judges aren’t legislating from the bench,” which is “one of the greatest challenges to our democracy.”

A LESSON FROM JUSTICE JACKSON

Meanwhile, Florida’s own Justice Ketanji Brown Jackson is displaying her liberal brand of originalism in her debut term on the U.S. Supreme Court.

At one of her first oral arguments, Jackson hijacked originalism and gave it a progressive push. The issue in the Alabama voting rights case is whether congressional district maps can be drawn legally in a “race-neutral” manner.

Engaging with a lawyer for Alabama, Jackson said the post-Civil War drafters of the 14th Amendment, which guarantees equal protection under law, wanted to benefit formerly enslaved people.

She quoted U.S. Rep. Thaddeus Stevens of Pennsylvania as saying, “Unless the Constitution should restrain them, those [former Confederate] states will all, I fear, keep up this discrimination and crush to death the hated freedmen.”

Jackson said, “The entire point of the amendment was to secure rights of the freed former slaves.” By her reasoning, race matters in any equal protection analysis and there’s no such thing as a “race-neutral” district map.

Now judges who look back at what the authors of a law wanted to accomplish—the originalist mantra—may take a cue from Jackson and consider not only what the law says, but the context.

AN EXPANSIVE VIEW OF PRIVACY

In Florida, though, observers will be amazed if the state Supreme Court doesn’t wield originalism like a sledgehammer to demolish the legal support for abortion.

“I fully anticipate that the Florida Supreme Court will uphold the 15-week abortion ban,” lawyer and state House District 29 candidate Rick Karl said.

The court doesn’t have to go there. Jackson isn’t the only intellectual who thinks outside the box about originalism.

West Palm Beach appellate lawyer Adam Richardson wrote a scholarly paper that raises this originalism-related question: Whose understanding of Florida’s privacy guarantee should matter?

His answer: the voters who passed the 1980 privacy amendment.

After reviewing 200 articles about the privacy debate that were published before the 1980 vote, Richardson concluded, “The public understood the proposed right to be extremely broad.” They expected the privacy clause to protect confidential information, the right to choose abortion, and more.

Stetson University College of Law published Richardson’s paper; an article Richardson sent to the Tallahassee Democrat responding to Stemberger’s column never ran.

ANSTEAD: ROE LED DIRECTLY TO TW

Still other influencers say forget originalism and just look at the history of privacy law in Florida, starting with Roe v. Wade in 1973.

Former Justice Anstead suggested there’s an indelible throughline from Roe to the TW decision in 1989. His one caveat is that “our right to privacy was much broader and more explicit.”

The U.S. Constitution has no explicit privacy clause. Thus, the U.S. Supreme Court wasn’t defying a written directive when it reversed Roe and revoked women’s right to choose in Dobbs v. Jackson Women’s Health.

But before Florida can join the anti-abortion crusade, its highest court should deal with Article 1, Section 23 of the Florida Constitution, the “Right of Privacy: Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life…”

Within a decade of Florida voters approving Section 23 in 1980, the state high court ruled that “the right to be let alone” protects abortion. The TW decision held that Section 23 invalidated a 1988 law requiring minors to obtain parental consent for abortion.

The TW ruling is still the determining factor in reviewing Florida abortion regulations, according to Anstead. He served on the court from 1994 to 2009.

THE GET-RID-OF-TW DILEMMA

“Our opinion speaks for itself,” Anstead said. “The best way to talk about what the law is in Florida is simply to quote our opinion.”

He referred to this language in Justice Leander Shaw’s TW decision: “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime.”

Yet today’s Florida Supreme Court isn’t likely to follow the dictates of TW and reject the abortion ban. Observers expect the court, armed with originalism theory, to reverse or diminish TW in order to justify upholding the law.

Months before the U.S. Supreme Court overturned Roe in June, DeSantis and the Florida justices were strategizing about doing away with TW, which they see as an obstructive liberal precedent, internal court sources told Florida Bulldog. The sources spoke anonymously about an unorthodox–at best–collaboration between the court and the governor.

STACKING THE ANTI-ABORTION COURT

In 2020, when DeSantis was prevented from appointing Francis, a Christian, to the court the first time he tried, the governor instead promoted Judge Jamie Grosshans from the Fifth District Court of Appeal.

Grosshans has been an anti-abortion activist and a member of a Christian group that’s trying to change the legal system in order to “spread the Gospel,” the Tampa Bay Times and Miami Herald reported.

This year DeSantis tried again to appoint Francis and targeted Justice Alan Lawson for replacement because he was considered “squishy” on issues like abortion, a court source said. In line for chief justice but passed over, Lawson retired on Aug. 31, leaving a spot open for Francis.

Now DeSantis has six reliably anti-abortion justices in place on the seven-member court. They await the opportunity to review Planned Parenthood v. State of Florida, the main legal challenge to the abortion ban.

The case is pending in the First District Court of Appeal in Tallahassee. In July the court rejected Planned Parenthood’s attempt to suspend enforcement of the 15-week abortion ban, ruling the group cannot claim the ban is causing women “irreparable harm.”