FL Supreme Court abortion ruling could extend to other rights long thought settled

Protestors gather at the Historic Florida Capitol building following the U.S. Supreme Court ruling that overturned abortion protections under Roe v. Wade on June 24, 2022. Credit: Danielle J. Brown

Quality Journalism for Critical Times

One little word in the Florida Supreme Court’s ruling striking down the long-recognized right to abortion under the Florida Constitution’s Privacy Clause could carry a lot of weight: “Today.”

It appears within a footnote in which the court’s majority sought to narrow the scope of its ruling: “[T]oday we do not revisit our precedents outside the abortion context.”

Jerri Blair photographed on Aug. 25, 2023, in Leesburg, Florida. Credit: Michael Moline

The phrasing alarms Jerri Blair, the retired Central Florida attorney who in 1989 persuaded the Florida Supreme Court of that era to find a right to abortion in that Privacy Clause.

“Like Dobbs, the majority tries to limit its decision to abortion but, like Dobbs, it used language that makes it clear that it may use this same reasoning in other contexts,” Blair told the Phoenix, referring to the U.S. Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade.

“It is the word ‘today’ that gives me that opinion. It says the opinion ‘today’ only impacts abortion. Clearly tomorrow may bring another disappointing result,” Blair continued by email.

With abortion-rights groups including Planned Parenthood preparing for a ban on abortions after six weeks’ gestation taking effect on May 1, observers are assessing the full dimensions of the Florida Supreme Court’s ruling. It’s already an issue in the November elections; President Joe Biden campaigned on abortion in Florida this week and Vice President Kamala Harris will be here next week.

Unprotected?

True, Justice Clarence Thomas in his concurring opinion to Dobbs agreed with that court’s majority that “nothing in [the court’s Dobbs] opinion should be understood to cast doubt on precedents that do not concern abortion.”

But Thomas immediately added that, “in future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” — establishing privacy rights to contraception, same-sex relations, and same-sex marriage.

Clarence Thomas via U.S. Supreme Court

(He didn’t mention Loving v. Virginia, in which the U.S. Supreme Court used similar reasoning to overturn a law under which Thomas’ own interracial marriage would be illegal.)

The implication seems clear: If the nation’s highest court ever does reconsider those rights, Floridians shouldn’t rely on their state’s highest court to protect them.

Biden pressed the point Tuesday during his Tampa speech.

“Justice Thomas means it, and so does Donald Trump,” the president said.

“Again, here’s what that means: the right to make the best decisions for your health, the right to use birth control, the right to marry the person you love. All that is at risk now because there it is no longer viewed by some of our good friends in the court as a constitutional guaranteed right,” Biden continued.

Blair noted: “Like Dobbs, the [Florida Supreme Court] majority tries to limit its decision to abortion, but, like Dobbs, it used language that makes it clear that it may use this same reasoning in other contexts.”

There’s more: In his sole dissent to the majority opinion, Justice Jorge Labarga warned that the ruling could “undermine the broad privacy protections that are extended in the medical context” — suggesting the state eventually could invade your doctor’s appointments more broadly than in the abortion context.

Anna Eskamani. Credit: Florida House

Getting there presumably would require additional legislation and litigation but Orange County state Rep. Anna Eskamani, a former executive for the Planned Parenthood branch that sued to block Florida’s abortion restrictions, suggested some areas at risk.

“Access to contraception and gender-affirming care to name just two,” Eskamani told the Phoenix by text message. “We are already seeing other states limit access to contraception and STI testing and treatment for minors.”

IVF

And then there’s in vitro fertilization — the Alabama Supreme Court ruled in February that embryos in cryostorage are “children,” effectively ending IVF in that state, although in March Gov. Kay Ivey signed legislation designed to allow treatments to resume.

“Rights currently protected by the federal constitution, e.g., gay marriage and contraceptives, are safe (for now),” Adam Richardson, a South Florida appellate attorney and writer who has taken a keen interest in the issue, told the Phoenix by email.

The Florida Supreme Court will protect your personal information but your right to make decisions about your own life “is fair game now,” Richardson continued.

The Florida Supreme Court handed down its ruling in Planned Parenthood of Southwest and Central Florida v. State of Florida on April 1. On that same day, the court ruled, 4-3, that a proposed state constitutional amendment to block government interference with abortion before the fetus becomes viable could go before the voters in November.

The court purports to take a “textualist” approach to jurisprudence, looking for the “original public meaning” of a statute or constitutional provision.

Jamie Grosshans. Credit: Florida Supreme Court

“Our analysis focuses on the Privacy Clause’s text, its context, and the historical evidence surrounding its adoption. After considering each of these sources and consistent with longstanding principles of judicial deference to legislative enactments, we conclude there is no basis under the Privacy Clause to invalidate the statute,” Justice Jamie Grosshans wrote for the majority.

“In doing so, we recede from our prior decisions in which — relying on reasoning the U.S. Supreme Court has rejected — we held that the Privacy Clause guaranteed the right to receive an abortion through the end of the second trimester,” Grosshans continued.

Those “previous decisions” include In re T.W., the 1989 ruling in which the earlier court found that the clause included the right to abortion, plus related rulings that drew upon it. That was the case lawyer Blair won so many years ago.

Privacy Clause

The clause, enacted as Article I Section 23 of the Florida Constitution, says:

“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

At the federal level, the principle of substantive due process holds that people have rights that aren’t spelled out in the Constitution but are implicit under the Fifth and Fourteenth amendments.

The late Leander J. Shaw, Jr. Credit: Florida Supreme Court

In T.W., then-Justice Leander J. Shaw, Jr. writing for a unanimous court on this point, drew upon the reasoning behind Roe but also found an explicit right under the state Privacy Clause.

“We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime, except perhaps the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment,” Shaw wrote.

Richardson, in extensive prebuttal and rebuttal to what the Planned Parenthood court concluded, emphasizes that Roe had been decided just seven years before T.W. came down, and that the substantive due-process theory that underlined Roe (and Griswald, Lawrence, Obergefell, and Loving) was well understood by the voters at the time.

Richardson is still digging up a contemporaneous written record, including news accounts, supporting that voters knew they were approving a broad right to make one’s own decisions without interference by the state. And in 1989, the sitting justices were considerably closer in time to the 1980 vote than our justices are today.

A broad right

In a January article for Slate, Richardson acknowledged lawmakers at the time mentioned informational privacy only, not decisional privacy. That is, the right to shield your personal records as opposed to the right to go about your life without the government nosing in.

“But it was communicated to voters that the proposed right was extremely broad, would mirror or exceed the rights protected by the federal Constitution, and would protect informational and decisional privacy,” Richardson added.

“Add to that the general political, social, cultural, religious, and legal background. Most importantly, in 1973’s Roe v. Wade, the U.S. Supreme Court rooted the right to an abortion in a broader constitutional right to privacy — something the public widely understood.”

The Planned Parenthood majority sweeps such concerns aside, arguing the T.W. court should have deferred to the abortion parental consent law that T.W. invalidated (although the court later upheld a narrower version).

“This error led the court to read additional rights into the constitution based on Roe’s dubious and immediately contested reasoning, rather than evaluate what the text of the provision actually said or what the people of Florida understood those words to mean,” Grosshans wrote.

“The decision to extend the protections of the Privacy Clause beyond what the text could reasonably bear was not ours to make. As a result, we removed substantial authority from the people’s elected representatives to regulate abortion — a profoundly unique and complicated issue that affects society in many significant ways.”

To Richardson, the ruling means the court will want to see that asserted implications of voter-approved constitutional amendments had been specifically and widely debated “before approval for those protections to be considered part of the original public understanding.”

“What’s more, the protection needs to have been uncontroversial at that time,” he added.

No solace

“For the Privacy Clause, maybe the rights to contraceptives and to cohabitation will pass muster, but nothing else, like private use of marijuana in the home or gay rights of any sort. Basically, the reasoning applied in Planned Parenthood applies to all these issues, and we should take the same amount of solace in the court’s distinction of abortion as we do from Alito’s in Dobbs,” Richardson continued.

Alito wrote the majority opinion in that case.

Ken Connor. Source: The Florida Bar

Ken Connor, a veteran anti-abortion litigator in Florida who subsequently moved his practice to South Carolina and who participated with Liberty Counsel, a national Christian legal operation based in Central Florida, in writing friend-of-the-court briefs in the case, was pleased at the outcome.

Does he see implications for other rights?

“Not really, but here’s what I think you can expect: People on the other side of this will weep and wail and gnash their teeth saying precisely that,” Connor said in a telephone interview — that “this is a cataclysmic event, so you all need to get out and vote and turn the rascals out, etc., etc., etc. This is the kind of stuff that gins up the base.”

Still, the Alabama rulingmakes sense from Connor’s perspective. If life begins at conception, what’s the difference between an embryo in utero and one in sub-zero storage?

“That’s what the Alabama court in part was faced with: What are we dealing with? Is this property, is this detritus which can be disposed of with impunity, or not? Because it’s not resident within that woman’s womb, so it doesn’t implicate the privacy of the woman to make decisions concerning her own body,” he said.

Attorney Mat Staver speaking to reporters outside the Florida Supreme Court on Feb. 7, 2024 (photo credit: Mitch Perry)

Mat Staver is founder and chairman of Liberty Counsel, Like Connor, he believes the Privacy Clause applies to informational privacy only.

“I think it would be very helpful to use that in protecting privacy, for example, on the internet and social media, Facebook, that compiles data on people, or the government compiling information or documents on individuals without proper search warrants,” Staver told the Phoenix by phone.

The Planned Parenthood court ducked whether the clause applies to informational or decisional privacy, Staver noted. “They just said it doesn’t apply to abortion.”

Implications?

Does Staver see implications for same-sex marriage?” “I think that fails just as much as abortion,” he said.

Contraception? “I don’t see the Legislature changing the law on that issue. But I don’t think that Article I Section 23 applies to contraception.”

Bob Jarvis, professor of constitutional law at Nova Southeastern University’s Shepard Broad College of Law, describes himself as pro-choice but figures the court got the law right. In any case, he has long argued that Gov. Ron DeSantis appointed reliable conservatives to the court to achieve exactly this result.

Bob Jarvis. Credit: Nova Southeastern University

“I do not believe that the court’s decision in Planned Parenthood will have any effect on privacy. The decision was a very targeted one – indeed, the court had a specific mission (to overturn In re T.W.) and accomplished that mission.  And even though I am pro-abortion, I think the court was right,” he told the Phoenix.

“Article I Section 23 does not use the word abortion and, at the time of its adoption, no one thought that it was creating a right to an abortion (especially given that Roe v. Wade was the law of the land and the U.S. Supreme Court was years away from its decision in Planned Parenthood of SE Pennsylvania v. Casey (1992), which marked the beginning of the end of Roe),” Jarvis continued by email.

“Moreover, the Florida Supreme Court has been so narrow in its interpretation Article I Section 23 that there really isn’t much that it protects or that the court could eliminate in its new decision. Thus, I think privacy rights in Florida stand exactly today where they stood” before the ruling, Jarvis wrote.

‘Disturbing’

For her part, Jerri Blair finds the outcome “disturbing, to say the least.”

“My concern goes much deeper than just the abortion issue. The Florida Supreme Court’s majority opinion in Planned Parenthood echoed that of the U.S. Supreme Court in Dobbs. Both cases ignore the concept of stare decisis, which is the backbone of the law in our country,” Blair said. The expression means respect for precedent.

“The Planned Parenthood court seems to realize that it’s crossing the Rubicon from the stability of a common law built on precedent that goes back for hundreds of years to the chaos of decision-making based upon the current political beliefs (or even religious beliefs) of the sitting court. This trend will crush the effectiveness and strength of the American judicial system,” she said.

The post FL Supreme Court abortion ruling could extend to other rights long thought settled appeared first on Florida Phoenix.