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Guest Column
Why the Florida Supreme Court must uphold its abortion precedent, even if Roe is overturned | Column
Florida’s constitution specifically protects the right to privacy, which the state supreme court has interpreted to include the right to an abortion.
Florida Gov. Ron DeSantis signs a 15-week abortion ban into law, Thursday, April 14, 2022, in Kissimmee. The move comes amid a growing conservative push to restrict abortion ahead of a U.S. Supreme Court decision that could limit access to the procedure nationwide.  (AP Photo/John Raoux)
Florida Gov. Ron DeSantis signs a 15-week abortion ban into law, Thursday, April 14, 2022, in Kissimmee. The move comes amid a growing conservative push to restrict abortion ahead of a U.S. Supreme Court decision that could limit access to the procedure nationwide. (AP Photo/John Raoux) [ JOHN RAOUX | AP ]
Published May 26

If the U.S. Supreme Court adopts its leaked opinion and overrules five decades of precedent following Roe v. Wade, the question of abortion rights in Florida will fall to the Florida Supreme Court.

Like the U.S. Supreme Court, Florida’s court will have to change decades of precedent interpreting the state constitution to protect a woman’s right to choose. This should never be done lightly, and can have serious consequences for the court that overrules itself.

Louis Virelli
Louis Virelli [ Provided ]

Unlike the U.S. Supreme Court, the Florida Supreme Court has two additional and powerful reasons why it should not overrule that precedent.

The first has been frequently discussed. It is a fact that the Florida constitution specifically protects the right to privacy, which the Florida Supreme Court interpreted in 1989 to include the right to an abortion. The word “privacy” is not in the U.S. Constitution, and that textual difference is a big part of the draft opinion overturning Roe.

The second reason the Florida Supreme Court should feel even more bound by its precedent is the way constitutional law is made in Florida. The U.S. Constitution is basically static. It has only been amended 27 times, and most recently 30 years ago. More to the point, the political environment nationally makes future amendments (which require two-thirds of both houses of Congress and three-quarters of the states) almost impossible.

This is where Florida is different, and is why the Florida Supreme Court must not overrule its abortion president. The Florida constitution can be amended by a public referendum, in which 60% of voters can change the language of the document and in turn the constitutional law of the state. This is not a rare occurrence, and has been used to address controversial issues. Voting rights for convicted felons and the legalization of marijuana have both been recent topics of constitutional referendum in Florida. Abortion has also been part of this process. In 2012 voters rejected a proposed constitutional amendment to make abortion rights in Florida the same as those under the federal Constitution.

When we talk about judges in America, we frequently deride them for making, rather than interpreting, law. Part of interpreting the law is following past decisions so the law and the court appear consistent and predictable. The Florida Supreme Court’s abortion precedent has been the law of the state for over three decades. It can be overturned by 60% of the voters. It should not be undone by seven unelected justices.

Louis J. Virelli III is a professor of law at Stetson University College of Law who specializes in constitutional law and is the author of Disqualifying the High Court: Supreme Court Recusal and the Constitution.

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