At Planned Parenthood hearing, Supreme Court makes it clear the right to abortion is doomed in Gov. DeSantis’s Florida

planned parenthood
The Florida Supreme Court at Friday’s hearing.

By Noreen Marcus,

If there was a shred of doubt that the Florida Supreme Court will sign off on the state’s extreme abortion bans, it vanished during Friday’s hearing in the case of Planned Parenthood v. State of Florida.

The most revealing moment of the hour-long argument came toward the end, when Chief Justice Carlos Muniz asked a question that was more of an incredulous statement directed at plaintiffs’ lawyer, Whitney Leigh White.

“You’re asking us to essentially take a whole class of human beings and put them outside of the protection of the law? … If the Legislature wants to protect those human beings, they are precluded by the Constitution of Florida from doing that?”

The answer observers expect from this court is: No. Only ardent abortion foes refer to fetuses as “human beings.”

“Everyone knows that this is a done deal,” said Sharyn Smith, a retired government lawyer who helped develop Florida’s freestanding privacy law in the 1970s.

planned parenthood

Those efforts led to the passage in 1980 of an amendment to the state Constitution that explicitly protects the right to privacy. Some observers considered this a bulwark against eliminating abortion, even after Gov. Ron DeSantis and the Republican Legislature promoted and approved the 15- and six-week bans. 


But Friday’s Planned Parenthood hearing strongly indicates the observers were wrong.

White, a lawyer with the ACLU’s Reproductive Freedom Project, represents abortion providers and women seeking abortions after the 15th week of pregnancy, which is already illegal under a year-old state law. Unless the justices reverse a lower court ruling and end enforcement of the 15-week ban, as Planned Parenthood requests, a newer six-week ban will take effect.

That will all but end abortion in the state not only for Floridians, but for women from neighboring states who saw Florida as a safe haven after the U.S. Supreme Court reversed Roe v. Wade last year. Florida had a spike in legal abortions and ended 2022 with 82,000 procedures, according to a report from the Society of Family Planning.

Knowledgeable observers said once the new abortion bans reached the Supreme Court for review, the justices would have to bow to the court’s own 1989 decision, In re: TW, that applies the privacy law to abortion.

“Any court that has to decide that issue would have to confront our previous decision,” former Chief Justice Harry Lee Anstead told Florida Bulldog in October. “That’s the prevailing law in Florida no matter what the Legislature decides.”

planned parenthood

It was apparent at Friday’s hearing, however, that the court had found a way around that inconvenient 1989 decision. Using a conservative legal theory called originalism, the justices seemed to embrace the idea that back in 1980, voters and legislators understood the privacy amendment would protect private information but not private decisions to obtain medical procedures including abortion.


They echoed anti-abortion crusader and court insider John Stemberger, who wrote in a column last year for the Tallahassee Democrat that “the privacy amendment was birthed directly out of a nationwide debate over governmental intrusion into the private lives of citizens” after the Watergate scandal of the early 1970s.

He didn’t mention the fact that Roe v. Wade, decided in 1973, also sparked a nationwide debate, one that’s raging still.

For proof of that, consider DeSantis’s carefully calibrated stance on abortion as he runs for the Republican presidential nomination.

The governor signed the six-week abortion ban behind closed doors and under cover of darkness in April and has not made much noise about it on the campaign trail. But at small gatherings with his base of abortion opponents, he’s applauded for his stance.

Planned Parenthood argues that privacy has never been a zero-sum game – both kinds, informational and decisional, were meant to be protected by the 1980 amendment.

But the court seems open to rewriting history on behalf of an anti-abortion agenda, according to Smith, who helped craft the privacy amendment as a top aide to the late Florida Attorney General Robert Shevin.

“The problem is that it never occurred to anyone that we would ever have a Florida Supreme Court that refuses to acknowledge what the language of a state constitution says,” Smith said. “That was unthinkable in 1980 but it’s very much of a reality today.”


Smith said Shevin wanted to make sure that open government – government in the sunshine – wasn’t sacrificed in the name of privacy. And that was his focus, not abortion protection, which was settled law after the Roe decision.

So according to Smith, Shevin inspired this caveat to the Florida Constitution’s “right to be let alone” guarantee: “This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

On Friday, Muniz said that part of the privacy law “seems a non-sequitur.”

The state was represented by Florida Solicitor General Henry Whitaker, a former law clerk to U.S. Supreme Court Justice Clarence Thomas, according to his biography on the Federalist Society website, where he’s listed as a contributor. Whitaker was a longtime U.S. Department of Justice counsel and appellate lawyer before assuming his current post in July 2021.

During his argument Whitaker suggested that under Planned Parenthood’s interpretation of the privacy law, infanticide, euthanasia and spousal abuse could be protected along with abortion.

“Those are all involved, personal decisions that I suppose the government could be said to be interfering with, in some sense, when the Legislature takes action to remedy choices that harm others,” he said.

When it was White’s turn, she made short work of Whitaker’s comparison.

“Frankly, there’s no reason for the court to be concerned with that,” she said. “This is not a brave new world.”

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Latest comments

  • I’m glad to hear child sacrifice to Moloch is no longer allowed in Florida – more states should follow suit.

    Satanists have to ply their trade and appease their evil deity elsewhere.

    Goodbye and good riddance to bad rubbish.

  • It was disgusting watching this argument in person at the court. I can’t believe they kept a straight face as they asked questions of counsel from the bench, especially Chief Justice Muniz. It couldn’t be clearer that the justices made up their minds to reinterpret the privacy clause of the state constitution long before they sat to hear this case on Friday.

    From their comments, these judges obviously want to rule that (a) the court in 1989 was “wrong” when it said the privacy clause protected a state right to an abortion, (b) the privacy clause actually was meant to protect “informational privacy” and “religious freedom,” not personal privacy and especially not personal privacy in matters of human sexuality and reproduction, and (c) public records laws and laws protecting minority groups are subordinate to this newly concocted “informational & religious” right of privacy.

    Florida courts then obviously will use this reinterpreted privacy clause to destroy the Sunshine laws, invade the rights of LGBTQs, undermine the rights of other minorities, support state funding of “correct” religious groups, and so on. This is a judicial farce. It is giving Ron DeSantis exactly what he wants when he runs for president again in 2028. America, this is what Ron DeSantis wants to do to you and the entire nation.

  • Yet another reason never to visit Florida. Florida- where Liberty dies.

  • Planned parenthood does not include abortion. That is just an irresponsible decision by these people who want to have “casual sex”. So much for birth control or condoms. So if they get pregnant they can just dispose of the fetus like it is trash. Rape, of course should be looked at differently, but the “rape” card get’s easily played. Sorry, but babies do not ask to be born.

  • Kiss the concept of an impartial Judiciary goodbye in my home state. The great rebirth as The Republic of Gilead has begun.

  • Canady has turned out to be a disgrace. In the 1990s he sponsored bills to ban “partial birth abortion” when he was in Congress and still brags on his Wikipedia page that he coined the term. Then he gets himself appointed to the Supreme Court of Florida while his wife gets herself elected to the legislature on a promise of banning abortion, and she goes on to sponsor the 6-week abortion ban that still awaits challenge in court. Yet, Canady despite his clear bias won’t recuse himself even though former Justices say it is required if he truly wants to be an ethical judge. We all can see what he and his colleagues are doing to the reputation of the courts and the concept of public trust and confidence in them.

  • In late 1995, a lawyer who later would become a Florida judge made a remark quoted by the New York Times. I want all of us to consider whether this lawyer-turned-judge should be sitting in judgment today over abortion rights in the state of Florida.

    “I think this is a step forward in the battle to protect the unborn in this country,” said lawyer and Congressman Charles T. Canady after an important 1995 congressional vote to ban an abortion procedure. “That battle will be waged over an extended period of time. The [U.S.] Supreme Court has in place a legal structure which protects abortion rights in this country [Roe v. Wade], and something has got to be done to change that before we can put in place truly meaningful protection for the unborn.”

    This is the same Charles Canady who on Friday sat in judgment on the bench of the Florida Supreme Court reviewing the constitutionality of a 15-week abortion ban. As everyone knows, Roe v. Wade has been overturned. But Florida still has a privacy clause in its state constitution that a prior Florida Supreme Court firmly said gives women in this state the right to control their own bodies and terminate a pregnancy before viability.

    Justice Canady would have us believe that he has now become an impartial arbiter, as the Florida Code of Judicial Conduct requires. His silence on the bench on Friday speaks volumes. Everyone who has followed his career and the anti-abortion career of his wife knows quite well that the Canady household has never abandoned the crusade against personal rights that Justice Canady announced as a congressman in 1995.

    Justice Canady now is in a position to finalize in Florida the promise he made in 1995. He is unwilling to give it up even if it shows him to be a biased and unethical judge whose mind was fully made up 28 years ago. This is the antithesis of what a judge should be.

  • This is what it looks like when a corrupt, lawless, sadistic half-wit governor stacks a state supreme court with others of his tribe.

  • We love Charles and Jennifer Canady here in Lakeland. They promised to get rid of abortion and now they are doing it. Promise made, promise kept. God Bless them both. Doing God’s work on the Supreme Court of the Great State of Florida so that child murder is forever banned. Just ignore those heathen lawyers and godless libtards who want to kill babies, Charles. That’s only Satan talking.

  • What do you expect from a political hack like Muniz? Before he was appointed to the state supreme court, he was Betsy DeVos’s lawyer under the Donald Trump administration. And three years later, he mysteriously is the chief justice here in Florida, passing over lots of Florida judges with far more experience than he has? Come on. No one makes that kind of swift career rise unless politics are at work. These people are destroying the integrity of the state supreme court.

  • You wonder why lawyers are afraid of this ignorant bunch of politicians dressed in robes? Just listen to the nonsense they spouted in this oral argument. This is not legal argument. It is window dressing for raw politics out to rewrite the constitution without even asking We The People what we think. These lunatics control the entire legal profession. They write the rules lawyers have to live by. They write the rules judges are supposed to follow, even though they don’t follow them themselves. Every lawyer in this state is under their thumb. Now they are going to put every woman in the state under their thumb too as they rewrite the privacy amendment to force women into childbirth. We are right back where we were in the Seventies with a bunch of corrupt judges running the courts and the legal profession.

  • Okay, let me see if I’ve got this straight. Judge Canady gets to rule in favor of his wife’s antiabortion crusade. So next up, I suppose Judge Sasso gets to rule in favor of her husband’s fight against the wokeness of Disney World. And if a supreme court judge has too many inconvenient scruples, DeSantis can simply lure them off the court with a high paying job at a Republican law firm like he did with Judge Lawson and Judge Polston. I get it. Wish my wife had something to trade with DeSantis.

  • Abortion is an abomination in the eyes of the Lord God Jehovah. Break every one of man’s rules if you have to, but it must come to an end. Man’s laws must bend to God’s. Florida must rid itself of the sin of murdering these innocents.

  • The fact that people support interfering with something that will eventually become a human life is utterly repugnant. There is no argument against it. Abortion stops what would be a life. It is wrong. Moreso, those that support it are disgusting.

  • These judges are scared and they’re trying to find an easy way out. All the fancy talk about third party standing is just mumbo-jumbo to duck the real issue. They will rule on a technicality and avoid something so morally evil that it is destroyed America. Vote them all out of office. Abortion must end once and for all in Florida.

  • Bought and paid for. That’s what these judges are. Anyone can see on the video that they already made up their minds. Even the abortion supporters on here agree with that, like Ms. Jenkins said in her comment.

  • “Their daughters shall curse them, and their daughters daughters, for generations to come.”
    -verse 3:16, The Book of UNintended Conseqences”

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