Justice Canady ignores his conflict of interest in high-profile abortion ban case

By Dan Christensen and Noreen Marcus, FloridaBulldog.org

Florida Supreme Court Justice Charles Canady has an undeclared conflict of interest amid the high court’s review of a strict abortion ban passed by the Legislature and signed into law by Gov. Ron DeSantis last year.

In April, within months of the ban after the 15^th week of pregnancy becoming law, the Legislature and DeSantis enacted an even tougher ban co-sponsored by Canady’s wife, freshman State Rep. Jennifer Canady, R-Lakeland. This six-week ban would all but eliminate legal abortion in Florida.

But the fate of the new law pushed by Rep. Canady depends on how the Supreme Court rules in Planned Parenthood of Southwest & Central Florida’s lawsuit against the state.

And despite the conflict of interest with his legislator wife, Justice Canady has not disqualified himself from participating in the case by filing a recusal.

Planned Parenthood, its co-plaintiffs and more than a dozen other groups that have filed “friend of the court” briefs on their behalf argue that the 15-week abortion ban violates Florida’s constitutional protection of individuals’ privacy rights.The 15-week ban took effect July 1, 2022 and doctors who perform abortions in violation of the law can face felony criminal penalties and loss of their licenses to practice medicine.

The privacy clause was added to Florida’s constitution after 60.6 percent of voters supported it in a 1980 referendum. The high court itself upheld it in 1989 and declared the law protects the right to abortion. But if the court reverses course and decides the state constitution doesn’t legalize abortion, the six-week abortion ban will be triggered automatically and take effect 30 days later.

NOBODY’S TALKING ABOUT CANADY CONFLICT

The seven-member court has yet to announce whether it will hear oral argument in the high-profile Planned Parenthood case that began last August. Justice Canady – who has twice served stints as chief justice – and his colleagues have accepted dozens of legal briefs from both sides for their consideration before rendering a ruling.

Florida Bulldog sought to ask Justice Canady about his conflict of interest and why he has not stepped aside. “Justices are prohibited from discussing pending cases before the Supreme Court. Justice Canady is unable to speak to you,” said court spokesman Paul Flemming.

Florida Bulldog also requested comment about Justice Canady’s conflict from 10 attorneys representing the eight plaintiffs: Planned Parenthood, Gainesville Woman Care LLC, Indian Rocks Woman’s Center, St. Petersburg Woman’s Health Center, Tampa Woman’s Health Center, A Woman’s Choice of Jacksonville, Dr. Shelly Hsiao-Ying Tien and the American Civil Liberties Union Foundation. None responded.

The judiciary is Canady’s second vocation. The Lakeland native served in the Florida Legislature for six years and then in Congress for four terms.

Canady started out as a “conservative Democrat” and switched parties during his state House days. He came to national attention in the late 1990s as one of a dozen U.S. House managers who prosecuted President Bill Clinton at his Senate impeachment trial. Clinton was acquitted.

As a congressman, Canady is credited with—or blamed for, depending on one’s viewpoint—coining the term “partial-birth abortion,” which has tormented the pro-choice movement ever since.

Canady returned to Florida as Gov. Jeb Bush’s general counsel. After a stint on the Second District Court of Appeal, Gov. Charlie Crist appointed him a justice in 2008.

CANADY EXERCISES HIS JUDGMENT

In February 2022, as Jennifer Canady was campaigning for election to the state house, Florida Bulldog reported about how Justice Canady’s official decisions might soon be influenced by his personal interests: If she wins, the court that her husband leads may someday pass judgment on a law she sponsored. So would Canady recuse himself, or participate in the case anyway?

He should stand down to avoid raising conflict-of-interest concerns, but he doesn’t have to, said Peter Joy, a judicial ethics professor from Washington University School of Law in St. Louis. “It would be up to Canady to exercise his own judgment,” Joy told a reporter.

Today we know how Justice Canady exercised his judgment. And his refusal to excuse himself from the Planned Parenthood case despite the conflict posed by his wife’s direct involvement suggests he is unconcerned by either public perception or the rules that apply to the state’s judiciary.

Florida’s Code of Judicial Conduct is a set of seven general rules, or canons. They don’t describe every instance of human behavior, and consequently don’t touch on a situation in which a judge or justice’s spouse is a member of the Legislature and proposes a bill that is enacted into law and then comes before the court for review.

Rather, the code requires judges to “uphold the integrity and independence of the judiciary” and instructs they “shall avoid impropriety and the appearance of impropriety” and “perform the duties of judicial office impartially and diligently,” the code says.

“There is also something called common sense,” said one former justice who spoke anonymously.

CANADY AS GRAVEDANCER?

Why Justice Canady has chosen to keep the case and help decide it isn’t immediately clear. He’s not a swing vote whose absence would turn the tide in favor of the “pro-choice” crowd. He could simply want to be a part of what promises to be a memorable capstone to the anti-abortion movement in Florida.

Under Republican Govs. Ron DeSantis and Rick Scott, now a U.S. senator, the state Supreme Court has been transformed into a conservative bastion that generally agrees with the governor and the Legislature. DeSantis handpicked five of the court’s seven members. Gov. Charlie Crist appointed Canady and Justice Jorge Labarga, the court’s last remaining moderate.

Canady’s ideological fellows on the Supreme Court can surely be counted on to deliver, by hook or by crook, a “pro-life” victory that will spell the effective end of a woman’s right to obtain an abortion on demand in Florida.

To make that happen, though, the justices must redefine and narrow Florida’s constitutional right to privacy. And that will require some judicial flip-flopping.

For example, as The Washington Post first reported, in 2004 Chief Justice Carlos Muniz – then a private attorney – wrote an article for the Journal of the James Madison Institute that abortion rights activists are citing in the pending Planned Parenthood case.

“One purpose of the privacy amendment clearly was to give the abortion right a textual foundation in our state constitution,” Muniz wrote.

THE GROUNDWORK FOR CHANGE

Meanwhile, the court’s been laying the groundwork for change for some time.

As Florida Bulldog has previously reported, it’s hard to argue that a government-enforced ban on abortion 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 among conservatives 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, 2022 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 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 in 2022, 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.