Editorial: An abortion ban tempered only by the right to vote on it

The Florida Supreme Court tore a page from the Florida Constitution and flung it in the faces of the people Monday by effectively banning abortion in Florida. Six of the seven justices said the word “privacy” does not mean what most people sensibly assume it does.

But in a second ruling that was both sound and surprising, a court dominated by appointees of Gov. Ron DeSantis allowed the people of Florida to vote in November on a ballot initiative that would specifically protect abortion rights. It will be on the ballot as Amendment 4.

In a 4-3 decision, justices rejected Attorney General Ashley Moody’s contrived arguments that the initiative’s ballot summary is misleading. But Justice Carlos Muñiz picked up two votes for a concurring opinion that hints at an eventual “fetal personhood” declaration by the court that would render Amendment 4 moot.

The 6-1 decision to ban abortions, the most radical act yet of this reactionary court’s contempt for precedents it dislikes, says in effect that the people didn’t know abortion would be affected when they approved Florida’s landmark 1980 privacy amendment to the state Constitution.

That provision guarantees — or did until Monday — that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as provided herein…”

And if the people didn’t know, the majority said, then the court was wrong to conclude in 1989 that abortion was included in the right to privacy.

All seven justices in 1989 agreed with the majority opinion that nothing could be more private or personal than the decision whether to abort or continue a pregnancy.

What the 1989 court said then is still self-evident.

Monday’s decision not only upholds Florida’s ban on abortion after 15 weeks but effectively implements another law, labeled the Heartbeat Protection Act by its legislative supporters, that forbids abortion after six weeks — a time when many women don’t yet know they are pregnant.

It is astonishing, appalling and intolerable that Charles Canady, the senior justice, did not recuse himself and voted for that outcome. While representing Florida in Congress, he opposed abortion stridently. His wife, Jennifer, a freshman state House member, co-sponsored the six-week ban, written so as to take effect immediately if the court upheld the 15-week law.

Ultimate judicial activism

That outcome is no less disgusting for its inevitability since DeSantis began packing the court with candidates curated for their ideologies, first by a nominating commission that DeSantis commands, secondly by a secret cadre of advisers led by a leading abortion opponent, the Federalist Society’s Leonard Leo, and finally by DeSantis himself.

It was the ultimate in judicial activism, a trait DeSantis and his justices all claim to abhor. Moreover, the majority opinion also focused on what it imagined were the intentions of those who supported the 1980 privacy amendment rather than on the plain and logical meaning of the text.

Whatever happened to textualism?

The decision also contradicted the unmistakable opinion of a majority of voters who rejected the Legislature’s 2012 attempt to do what the court finally did this week. That failed amendment would have barred public funds for abortion and held that the privacy clause could not be used to provide broader privacy rights than those in the U.S. Constitution.

Once again, Justice Jorge Labarga’s solitary dissent casts harsh light on the majority’s biased conclusions.

“Contrary to the majority,” he wrote, “I am convinced that in 1980, a Florida voter would have understood that the proposed privacy amendment included ‘broad protections for abortion.’

“The right of privacy is no novel concept … even in early considerations of the right of privacy, scholars recognized that the right would be one that would evolve over time — and it did.”

By 1980, Labarga noted, the U.S. Supreme Court’s Roe v. Wade decision (since repealed by a right-wing majority), had educated the entire American public on how privacy bears on abortion.

Seven years after Roe, Florida voters wrote privacy rights into the state constitution. Labarga wrote at length to document what Florida voters heard and knew in the aftermath of Roe.

Labarga’s ‘deep dismay’

Labarga warned that Monday’s decision could jeopardize other aspects of privacy despite the majority’s claim that it doesn’t.

“What the majority has done today supplants Florida voters’ understanding — then and now — that the right to privacy includes the right to an abortion,” he wrote, concluding by expressing his “deep dismay.”

Infuriated voters have options. They can and should vote overwhelmingly for Amendment 4 on Nov. 5.

In the longer range, they should stop electing politicians like DeSantis, and demand that their legislators restore the independence of the judicial nominating commissions, which was destroyed by a 2001 law enabling the governors to appoint all nine members of each panel rather than only three.

They should also demand that Florida’s Judicial Qualifications Commission investigate Canady’s ethics in voting to uphold, in effect, his wife’s new abortion ban.

____

The Sun Sentinel Editorial Board consists of Opinion Editor Steve Bousquet, Deputy Opinion Editor Dan Sweeney, editorial writer Martin Dyckman and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.

___