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Some Florida Supreme Court justices have known anti-abortion views as big case looms

The state Supreme Court will hear oral arguments over the 15-week abortion ban on Friday.
 
Protesters hold signs as Barbara DeVane of the Tallahassee National Organization for Women speaks outside the Florida Historic Capitol in Tallahassee on June 24, 2022, during a rally protesting the Supreme Court's overturning of Roe v. Wade.
Protesters hold signs as Barbara DeVane of the Tallahassee National Organization for Women speaks outside the Florida Historic Capitol in Tallahassee on June 24, 2022, during a rally protesting the Supreme Court's overturning of Roe v. Wade. [ TORI LYNN SCHNEIDER/TALLAHASSEE DEMOCRAT | AP ]
Published Sept. 6, 2023|Updated Sept. 6, 2023

In just a couple of days, Florida’s Supreme Court justices will weigh the future of access to abortion in the state.

The seven justices, five appointed by Gov. Ron DeSantis, will weigh whether Florida’s current 15-week abortion ban violates the state’s constitutional guarantee of privacy after hearing arguments from both sides on Friday. But the justices won’t just be deciding the fate of the 15-week law: If they uphold that provision, 30 days later, a six-week abortion ban will kick in across the state.

The Supreme Court is reliably conservative, thanks in part to DeSantis’ appointments. Its decision will affect abortion access not just in Florida but across the entire South because women in states where abortion is even more restricted travel to Florida for access.

Related: In a post-Roe country, a Florida doctor wonders where to call home

The justices deciding that fate include Charles Canady, a former anti-abortion lawmaker whose wife is a state lawmaker who sponsored the six-week bill; Jamie Grosshans, who previously was a fellow for a conservative legal group and did legal work for an anti-abortion group; and Carlos Muñiz, a former President Donald Trump Department of Education nominee whose appointment to the Florida Supreme Court was applauded by an anti-abortion group.

If the court upholds the 15-week law, it could reverse its prior precedent from the late 1980s. The conservative court has already shown a willingness to upend precedent on other matters, including reversing the requirement for a unanimous death penalty jury less than five years after the court said it would be required.

At least one former state Supreme Court justice, Barbara Pariente, has said that Canady should recuse himself from the case because of his wife’s affiliation, although Canady has made no move to do so. Pariente made the comments at a June forum about abortion access.

In 1995, as a U.S. House of Representatives member, Canady introduced a bill called the Partial-Birth Abortion Ban Act. Canady was an early adopter of the term, which was created by an anti-abortion group.

Partial-birth abortion is not a medical term, and definitions of what it is can vary somewhat. Florida statute defines it as when a physician “partially vaginally delivers a living fetus” before terminating the pregnancy.

Canady’s wife, state Rep. Jennifer Canady, R-Lakeland, is the co-sponsor of Florida’s six-week abortion ban, which DeSantis signed into law less than 24 hours after the House passed it.

The six-week bill was hotly contested during the legislative session. Opponents, including obstetricians and gynecologists who came to speak, said that many women do not realize they are pregnant by six weeks and that shortages in the medical field mean many aren’t seen by doctors until a few weeks later.

Generally, justices don’t need to disqualify themselves for having a known stance on an issue or having previously worked as a lawyer on cases on the same issue, said Steven Lubet, a legal ethics expert at the Northwestern Pritzker School of Law.

“Would you have wanted Thurgood Marshall to stay out of civil rights cases?” Lubet said.

But Lubet said Canady’s relationship with the bill sponsor makes him weighing in on the case “unquestionably disqualifying.”

“Her (Canady’s wife’s) interest in the legislation is affected by the decision,” Lubet said. And, he noted, “no married person is impartial toward their spouse.”

According to the Florida code of judicial conduct, judges should disqualify themselves in cases where their impartiality “might reasonably be questioned,” including in situations where a judge’s spouse has an interest that could be affected by the case.

Paul Flemming, a spokesperson for the court, said there has been no motion to disqualify Justice Canady by the parties in the case.

Another justice, Grosshans, did legal work for a group that discourages women from having abortions, an experience she left off her application to the Supreme Court.

In 2016, Grosshans wrote an article for Christian Lawyer magazine and disclosed she did pro-bono legal work for crisis pregnancy centers, which are state-funded, often religiously affiliated groups that promote childbirth and discourage women from having abortions.

In that article, Grosshans wrote that, as attorneys, they have a unique calling and that they are, quoting Apostle Paul, “… Christ’s ambassadors, as though God were making his appeal through us.”

All of the DeSantis appointees to the state’s highest court — Grosshans, John Couriel, Renatha Francis, Meredith Sasso and Muñiz — are members of the conservative Federalist Society. Canady and Jorge Labarga, who were both appointed by former Gov. Charlie Crist, have also both been celebrated by the group and have spoken at Federalist Society events.

Critics of the Federalist Society argue the group pushes for conservative judicial activism, and that the group’s executives worked toward undoing Roe v. Wade, the 1973 Supreme Court case that declared abortion was constitutionally protected.

Chief Justice Muñiz’s 2019 appointment to the Supreme Court was celebrated by an anti-abortion group, the Florida Family Policy Council — a group that Muñiz later personally took on a tour of the Supreme Court, according to the Florida Bulldog.

In texts, John Stemberger, the head of the Florida Family Policy Council, asked Muñiz before the tour if he could share with the group the statement Muñiz gave after his appointment, in which he talked about working with people who recognized the “God-given dignity and worth of every human life.”

Muñiz texted back, asking Stemberger to “be careful in your remarks not to get me near the line of anything that wouldn’t be appropriate for my current role.”

But The Washington Post has also noted that Muñiz in 2004 wrote a memo as a private lawyer saying that Florida’s privacy clause was designed to protect abortion rights. If he stays in line with that thinking, it would benefit Planned Parenthood and the other providers challenging the state’s abortion restriction.

The other justices have less-known views on abortion but are also conservative.

Justice Couriel previously ran for the Florida House and Senate as a Republican. Couriel also spoke with Muñiz and Grosshans at a panel at Ave Maria School of Law, a Catholic university in Florida that celebrates its distinction as the most conservative law school in the U.S.

The court’s newest member, Sasso, is a member of the Teneo Network, she wrote on her application to the court.

The Teneo Network is a secretive conservative group meant to “crush liberal dominance” across the U.S., according to a report from ProPublica. A co-chairperson of the Federalist Society, Leonard Leo, is the chairperson of the Teneo Network’s board and a major driving force in the group. The group sees itself as the “Silicon Valley of Conservatism,” according to the ProPublica story.

In January, the Supreme Court rejected requests to temporarily halt enforcement of Florida’s 15-week law while the lawsuit played out. Justice Labarga was the only dissenting vote. In 2016, Labarga was also part of a more liberal majority that blocked the state’s 24-hour abortion waiting period from taking effect amid a lawsuit.