Supreme Court is playing a cruel joke: Florida voters won’t have final say on abortion in November

By Noreen Marcus, FloridaBulldog.org

On April Fools’ Day, the Florida Supreme Court used deception to doom abortion here by giving pro-choice voters false hope they’ll have the last word at the ballot box in November.

With its 6-1 decision in the Planned Parenthood case, the high court signaled that almost all access to abortion in Florida will end abruptly May 1.

On that date, a draconian six-week abortion ban will automatically replace the current, strict 15-week ban, thanks to a law co-sponsored by state Rep. Jennifer Canady, R-Lakeland. Her husband, Supreme Court Justice Charles Canady, voted with the majority despite his glaring conflict of interest: His vote helped determine the fate of his wife’s legislation.

Also on April 1, the court ruled 4-3 that voters can weigh in on whether abortion should be enshrined in the Florida Constitution. The court’s decision was widely hailed as a populist victory. Pro-choice Floridians are determined to amend the state constitution so it safeguards reproductive freedom.

“When voters head to the polls this November, they will send a message to Florida politicians. Decisions about whether or not to have an abortion should be between a patient and a provider, not between a constituent and their politician,” said Lauren Brenzel, director of the pro-abortion Yes on 4 campaign.

Pro-choice advocates could win the battle for votes and still lose the abortion war, however. The court ruling that authorized Amendment 4, “to limit government interference on abortion,” contains the seeds of its own obstruction — and may portend total defeat.

Hours before the opinions were released, an attorney with inside knowledge of court politics sent Florida Bulldog an email saying this: “They want to create an illusion that the vote in November on abortion will mean something.”

April Fool, indeed.

SABOTAGING THE VOTE

Justices who wrote or signed onto minority opinions in the voting case invited more litigation that could forestall the implementation of Amendment 4. They lamented that the ballot measure’s “vague and undefined terms,” including “viability,” “health” and “healthcare provider,” will require the kind of clarification that only lengthy court contests produce.

And although opponents can’t keep abortion off the November ballot, if the measure passes they can count on Republican legislators and Gov. Ron DeSantis to try and sabotage the new amendment. They know the drill from 2019, when they ignored public consensus and passed a law that scrambled an amendment to restore ex-convicts’ voting rights.

The Supreme Court can be relied upon to approve any laws that obstruct the abortion amendment; these justices hardly ever second-guess the Republican-dominated Legislature, which generally takes its cues from DeSantis.

Already the governor has complained about the abortion ballot measure, calling it, and another proposed constitutional amendment to allow recreational marijuana use for adults, “radical.”

“This amendment is misleading and will confuse voters. The language hides the amendment’s true purpose of mandating that abortions be permitted up to the time of birth,” said DeSantis spokesperson Jeremy Redfern.

By the November election anti-abortion crusaders may succeed at mobilizing enough of their followers to kill the ballot measure outright. Passage requires a whopping 60 percent of the vote.

The opposition will be led by activists such as Orlando lawyer Mat Staver, whose nonprofit Liberty Counsel represents clients in anti-LGBTQ culture war lawsuits. Liberty Counsel, a hate group according to the Southern Poverty Law Center, is positioning itself within the anti-abortion movement.

Acting as a friend of the court in the Planned Parenthood case, Liberty Counsel drew the justices’ attention to the Alabama Supreme Court’s controversial decision equating embryos with people. A national outcry against curbs on in-vitro fertilization forced the Alabama legislature to take corrective action. 

The Alabama Supreme Court, Staver wrote, “noted that an unborn child qualifies as a human life, a human being, and a person.” 

THE FETAL PERSONHOOD THREAT

The greatest long-term threat to Florida abortion rights is fetal personhood, a radical-right concept that Alabama and a few other states have enacted into law. The laws are used to justify criminal prosecution of women in connection with pregnancy. 

Several members of Florida’s most powerful court have hinted they’re open to protecting fetuses in similar fashion. They rely on the authority of the state constitution’s “basic rights” provision, Article 1, Section 2.

“All natural persons…are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty,” it says, paraphrasing the Declaration of Independence.

Anti-abortion justices use buzzwords like “unborn children” and “preborn children” to describe fetuses. All but one court member, Justice Jorge Labarga, wrote or signed onto one or more of the April 1 opinions that put a positive spin on fetal personhood.

Justice Renatha Francis did that as she came out swinging against the abortion ballot measure. “The exercise of a ‘right’ to an abortion literally results in a devastating infringement on the right of another person: the right to live,” she wrote in a dissent.

Francis cites the basic rights provision for this: “One must recognize the unborn’s competing right to life and the State’s moral duty to protect that life.”

If Amendment 4 passes and the court says the Florida Constitution protects “the unborn’s” right to life, “the court will then have to balance that right against the right to an abortion,” said West Palm Beach appellate lawyer Adam Richardson.

“There is concern that the court will let fetal personhood completely override the right to an abortion,” he said. Richardson doesn’t expect that to happen; nor does he foresee Florida returning to “a Roe v. Wade-like regime.”

THE LIBERTY COUNSEL ACTION

By giving pro-choice advocates the ballot measure they wanted, the justices appeared to defy DeSantis. The governor is known to use abortion opposition as a litmus test for Supreme Court membership; he chose five of the seven sitting justices.

Yet the court displayed admirable independence on April 1, Orlando lawyer John Stemberger remarked to Politico last week. Stemberger, an anti-abortion activist and close ally of Chief Justice Carlos Muniz and Justice Jamie Grosshans, is the new head of Liberty Counsel Action, the lobbying arm of Mat Staver’s Liberty Counsel.

“This should be further proof that the court we currently have is not in the back pocket of DeSantis,” Stemberger told Politico. “This really speaks to the legitimacy of the court and should ensure further public confidence. This is a court struggling to do the right thing.”

Stemberger has long promoted a key argument that Grosshans wound up using for her April 1 majority opinion in the Planned Parenthood case. She adopted Stemberger’s line that voters didn’t comprehend that the privacy amendment they approved in 1980 would protect abortion.

In a 2022 column for the Tallahassee Democrat, Stemberger wrote, “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 asserted the abortion debate also raging at that time – Roe v. Wade came out in 1973 – had nothing to do with Florida’s privacy amendment.

Grosshans wrote this: “Of note, in looking at the extensive discussion surrounding the privacy amendment, little to nothing was said about abortion in print or in public comment. The debate – as framed to the public – overwhelmingly associated the Privacy Clause’s terms with concerns related to government surveillance and disclosure of private information to the public.”

In Planned Parenthood the court toppled 35 years of state privacy law by receding from 1989’s In re: T.W., the first Florida decision to find abortion within the ambit of “the right to be let alone.” Grosshans rejected the “flawed” and “clearly erroneous” T.W. opinion.

LABARGA EXPRESSES ‘DISMAY’

Labarga called the majority ruling “an affront to this state’s tradition of embracing a broad scope of the right of privacy.” He wrote “with deep dismay.”

His dissent highlights pages of headlines and quotes showing that “abortion” and “privacy” were inextricably linked in the 1970s. It was a time most Americans got their news from the same broadcast and print sources — Walter Cronkite alone had 20 million or more viewers on CBS.

There’s “substantial evidence that overwhelmingly supports the conclusion that the public understood the right of privacy to encompass the right to an abortion,” Labarga wrote.

As usual, he stood alone in dissent. But at least two experts watching from the sidelines agree with him about public awareness of the abortion/privacy connection.

“It is clear that everyone understood the meaning of the term ‘privacy’ in this context,” said Philip Padovano, a Tallahassee appellate lawyer who served almost two decades on the First District Court of Appeal. “It has been used for fifty years or more now to include the right to abortion.”

Suggesting people didn’t know how abortion related to the privacy amendment “would be like saying that the terms ‘pro-life’ and ‘pro-choice’ don’t have anything to do with abortion because they do not specifically refer to abortion,” he said.

Former Chief Justice Harry Lee Anstead, who retired in 2009 after 15 years on the high court, said, “The ruling in Roe v. Wade that a woman’s right to choose was part of a broad right to privacy was well known to Florida voters” in 1980.

“In fact, the opinion on privacy in Roe may have been the only specific example of privacy rights known to Florida voters at the time,” he said. “Hence, Florida voters were on specific notice that their vote for constitutional privacy would protect a woman’s right to choose in Florida. 

“I concur completely with Justice Labarga’s brilliant and comprehensive dissent,” Anstead said. “Thank goodness for Justice Labarga!”