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Originalism or anti-abortion: Florida’s Supreme Court must choose | Column
The state now wants the Florida Supreme Court to overturn decades of precedent, uphold a 15-week abortion ban and clear the way for more aggressive abortion bans. But the state has a problem.
Protesters hold signs as Barbara DeVane, of the Tallahassee National Organization for Women, speaks outside the Florida Historic Capitol in Tallahassee during a rally protesting the Supreme Court's overturning of Roe v. Wade, in June.
Protesters hold signs as Barbara DeVane, of the Tallahassee National Organization for Women, speaks outside the Florida Historic Capitol in Tallahassee during a rally protesting the Supreme Court's overturning of Roe v. Wade, in June. [ TORI LYNN SCHNEIDER/TALLAHASSEE DEMOCRAT | AP ]
Published Oct. 21, 2022|Updated Oct. 24, 2022

Originalism and the anti-abortion movement are on a collision course in Florida. The people of Florida adopted a right of privacy in 1980 knowing it covered abortion rights. Any reasonable view of originalism — the philosophy frequently trumpeted by Gov. Ron DeSantis and his judicial nominees that says courts should defer to how the public understood constitutional text at the time it as adopted — would require the court to protect those rights.

Yet the state has asked the Florida Supreme Court to overturn decades of case law and re-write the constitution to eliminate this protection. This would constitute a startling exercise of judicial activism from the Florida Supreme Court. The court can be either originalist or anti-abortion. It cannot be both.

James Fox
James Fox [ Provided ]

The U.S. Constitution does not explicitly protect privacy. Federal decisions such as Roe v. Wade and the contraception cases of Griswold v. Connecticut and Eisenstadt v. Baird instead implied the right of privacy from the text. In 1980, seven years after Roe, Floridians protected more fully their privacy rights by adding a “Right to Privacy” provision to the state constitution, securing to everyone “the right to be let alone and free from governmental intrusion into the person’s private life.” As Justice Ben Overton, one of the provision’s initial drafters, wrote in 1989, Floridians “codified within the Florida Constitution the principles of Roe v. Wade ... as it existed in 1980.”

Because Floridians placed this right into the state constitution, the U.S. Supreme Court’s recent overturning of Roe does not change the fact that under state law the right to privacy was understood by the voters who adopted it to protect abortion. As a dissenting justices in the 1989 Florida case overturning a parental consent law noted, overturning Roe “would not diminish the abortion rights now provided by the privacy amendment of the Florida Constitution.”

One of the points of adding existing rights to a written constitution is to secure those rights from judicial backsliding. Originalist justices usually give great weight to pre-existing legal meanings of constitutional terms. The Second Amendment, according to the late Justice Antonin Scalia in District of Columbia v. Heller, effected a “codification of a pre-existing right” of self-defense. If a right “to keep and bear arms” carries with it the pre-existing rights of self-defense, the terms “right to privacy,” “right to be let alone” and the right to be “free from governmental intrusion into the person’s private life” should carry their full legal meanings from the time they were adopted as well. The phrase used in Florida’s amendment — ”free from government intrusion” — itself came from Roe and Eisenstadt, indicating that federal privacy rights were part of the Florida amendment.

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The state now wants the Florida Supreme Court to overturn decades of precedent, uphold a 15-week abortion ban, and clear the way for more aggressive abortion bans. But the state has a problem. The text of the constitution uses the very terms that were central to the Griswold-Roe line of cases.

The state’s answer is to have the court re-write the text to protect only “informational” privacy. When anti-abortion activists proposed a new amendment in 2017 to do just this, the independent Constitution Revision Commission refused to advance it to the ballot. Seeking to circumvent the amendment process, the state now relies on a wafer-thin historical argument that this broadly phrased amendment implicitly excluded the well-known right to abortion.

This claim rests on a statement in 1980 by the amendment’s Senate sponsor, Jack Gordon. When asked by another senator whether the amendment might affect abortion litigation because Roe was a right to privacy case, Gordon responded that he did not understand “privacy rights within the family” to be the same as the private rights covered by the proposed amendment. Yet Gordon also said he was glad sexual privacy was protected by the amendment. Just how Gordon distinguished “family” rights like reproduction from sexual privacy was unclear.

Gordon’s confused comment flew in the face of a House Committee staff report, relied on by both the House and the Senate. That report discussed Roe and abortion rights as core aspects of the pre-existing right to privacy. Legislators who voted on the amendment knew — as the senator’s question to Gordon showed — that Roe was an important precedent for the right of privacy. If the drafters had wanted to prevent the amendment from including established federal rights, they would have said so in the text.

Moreover, originalism instructs that courts should focus on how the voters would have understood the text, not what an individual legislator said in a debate. It was well known in November 1980 that the right of privacy was the legal basis for abortion rights. Earlier that year the national and Florida press ran numerous front-page stories about a U.S. Supreme Court case upholding a congressional ban on funding abortions. Many stories noted, however, that the case did not change Roe or limit women’s right of privacy.

As a Miami Herald story stated, the Court in Roe based “its ruling on a woman’s right to privacy.” In July, the Florida Catholic covered a speech by the nation’s leading pro-life legal academic, John Noonan, blasting the right of privacy as the basis for abortion and contraceptive rights. In August the statewide and Catholic press each covered the debates over the Democratic Party platform, which cited the right to privacy as a basis for both abortion rights and informational privacy.

Florida voters knew the right of privacy protected abortion. They had no reason to think the amendment’s language silently limited itself to “informational” privacy, as the state now suggests. If that is the amendment anti-abortion advocates would like, they should again try to propose it to the people of Florida. That they instead want the courts to impose this re-writing by judicial fiat reveals more about their lack of commitment to originalism and judicial restraint than it does about the meaning of the Florida Constitution.

James W. Fox Jr. is a professor of law at Stetson University College of Law.