Editorial: Florida Supreme Court justices parrot fiction on 15-week abortion ban

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When lawyers opposing Florida’s 15-week limit on safe, legal abortions arrived at the majestic state Supreme Court building Friday, they knew they faced long odds. This court is stacked with supporters of Gov. Ron DeSantis, and the willingness to trash precedent and ignore the history of Florida’s clear protections for medical privacy were almost certainly used as private litmus tests as DeSantis weighed his high-court picks.

And while it’s normally not a good idea to rely on the questions justices ask at oral arguments to predict how the court might rule, Friday’s comments leave us pretty confident that a majority of the court is willing to play along with the prevailing view that — up until about 14 months ago when Roe v. Wade was overturned — nobody really understood Florida’s constitutional privacy protections.

Legislators who put the issue on the ballot in 1980? Didn’t know what they were doing.

Prior Supreme Court justices who ruled in 1989 that abortion decisions were about as private and personal as a decision could be, and clearly protected in Florida to a far greater degree than they were by federal law — a ruling they echoed in 2003? They were wrong.

Different lawmakers, who put amendments on the ballot in 2006 and 2012 meant to punch holes in the privacy clause to allow abortion restrictions? Wasting their time.

And the voters who went to the polls each time and made their wishes perfectly clear? Those folks moaning about other rights that could be lost, such as the right to say “no” to a vaccine or parents’ rights to make educational decisions for their kids? Who cares about them?

Ignorance or pretense

That came through loud and clear in the questions Justice John Couriel repeatedly fired at ACLU lawyer Whitney Leigh White last week about the debate in 1980,k when the privacy clause was placed on the ballot. If medical privacy was meant to be covered by the original amendment, “…you’d expect to see groups like Planned Parenthood and Right to Life debating that in 1980,” Couriel said. “How do you explain that?”

The answer to that question is simple: In 1980, access to safe, legal abortion was clearly protected by federal law as well. There was no need for it to come up. But other deeply personal liberties — including protection for LGBTQ+ Floridians — were not nearly as well protected. Backers of the amendment, leery of tying their language to overtly controversial topics, tried to ward off talk about drug use and homosexuality. But news coverage and floor debate made it clear that most Floridians saw the 1980 amendment as expansive, covering personal decisions as well as access to intimate information.

Couriel’s ignorance — willful or not — might be forgivable in some situations. After all, he was only two years old when the privacy clause was placed on the ballot. Other DeSantis picks are similarly inexperienced, yet seemed equally smug and misinformed as they questioned White.

What’s inexcusable, however, is their blindness to the misery Florida’s 15-week ban is causing right now, including women who have suffered serious health consequences because they couldn’t get abortions for pregnancies that were no longer viable, and at least one young teen who was denied an abortion that resulted from a rape.

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How does forcing women to continue pregnancies against their will, despite real risks to their health or their status as victims of sexual assault, square with Florida’s clear protection for the “right to be let alone and free from governmental intrusion into the person’s private life?” This group of DeSantis picks may not understand history. But they should be able to read plain English.

Canady should recuse himself

One justice, however, clearly understands this issue inside and out. That’s because Charles Canady has been on the front lines in the assault on reproductive freedom for most of his political career — and because he’s married to the lawmaker who sponsored Florida’s even more onerous ban on abortions after just five weeks of pregnancy.

This is a clear, blatant violation of Florida’s long-standing standards that require justices to step out of cases — known as recusing themselves — where they have an obvious conflict of interest. While he served in Congress, Canady was the chief driver behind early attempts to set time limits on abortion; he’s even credited with popularizing the deceptive term “partial birth abortion” and coming up with gruesome scenarios that equated medically necessary procedures with infanticide.

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With nearly two decades of experience as an appellate judge following his congressional service, Canady must also know the rules governing recusal. He’s seen U.S. Supreme Court Justice Brett Kavanaugh step out of cases involving Johnson and Johnson, because his father once lobbied for the baby-products corporation, and Justice Elena Kagan recuse herself from cases (including, in June, the decision to re-hear the appeal of a Broward County death-row inmate) because she was U.S. solicitor general when previous appeals were being carried out.

Yet Canady sat at the dais on Friday, saying little, but exhibiting the clear intention of participating in deliberations on the 15-week ban. He knows his vote isn’t even needed in this case; the five justices DeSantis appointed constitute a resounding majority on the seven-member court.

The only argument anyone is offering in Canady’s defense is that none of the attorneys fighting the 15-week ban has asked him to recuse himself. That’s a sorry excuse. With a conflict this glaring, any justice as experienced and canny as Canady should be able to see that he’s swinging a wrecking ball at the integrity of Florida’s judiciary.

He should step down. And if he doesn’t, the state Judicial Qualification Commission should ask him to explain why he didn’t.

The Orlando Sentinel Editorial Board consists of Opinion Editor Krys Fluker, Editor-in-Chief Julie Anderson and Viewpoints Editor Jay Reddick. Contact us at insight@orlandosentinel.com