By Noreen Marcus, FloridaBulldog.org
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.
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.
STATE PRIVACY LAW NO IMPEDIMENT
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.”
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.”