Florida’s firewall against abortion restrictions is in jeopardy

“I don’t think anyone is naive that the Florida Supreme Court has become more conservative,” said state Rep. Anna Eskamani (D-Orlando), who worked for Planned Parenthood. “But they haven’t decided on an abortion case yet. It will be the first for a long time. »

Florida’s recently approved abortion ban is receiving increased attention in the national abortion rights debate after the release of the Supreme Court’s initial draft opinion reversing the decision of 1973 Roe vs. Wade decision. The American Civil Liberties Union of Florida has vowed “legal action” to challenge Florida’s ban and said it could use privacy law to revoke it.

“More than four decades ago, the citizens of Florida approved a constitutional amendment to ensure that the state Constitution provides independent protection for privacy and abortion rights,” said Daniel Tilley, Director Legal from the ACLU Florida, in an email. “The Florida Supreme Court has since held that the state Constitution protects the right to abortion from government intrusion, such as the 15-week ban. We hope they will continue to do so.

“But the public should be concerned that the federal and state rights that protect our ability to have an abortion are each just one court order away from being wiped off the map,” he continued.

Florida is one of 11 states whose constitutions and courts have established abortion rights independent of the US Constitution. The pressing question among abortion-rights supporters is what will happen if the abortion case goes to the state High Court, whose ranks include a former congressman who helped to lead the impeachment of former President Bill Clinton and the former top lawyer for the former Department of Education. Secretary Betsy DeVos. The court has already shown its willingness to overturn previous precedents, although it has yet to rule on an abortion case.

Court watchers predict any legal challenges would likely cite the state’s 1989 Supreme Court decision that struck down a parental consent law because of Florida’s unique privacy clause.

“It’s a powerful abortion right, much more expansive and powerful than deersays John Stemberger, attorney and president of the Florida Family Policy Council, a conservative anti-abortion rights group.

Voters in 1980 approved the privacy measure, which states that a resident has the “right to be left alone and free from government intrusion into his privacy.”

“Florida’s confidentiality clause is clearly implicated in a woman’s decision whether or not to continue with her pregnancy,” Judge Leander Shaw wrote for the court at the time. “We can conceive of few additional personal or private decisions about one’s body that one can make over the course of a lifetime, except perhaps the decision of the terminally ill in their choice whether or not to discontinue necessary medical treatment.”

Stemberger and others opposed to the decision, however, argue that the court went beyond the meaning of the privacy amendment text and that lawmakers failed to consider abortion rights. when they put it on the ballot. But in his concurring opinion, then-Chief Justice Raymond Ehrlich pointed out that the privacy amendment came several years after Roe vs. Wade had legalized abortion.

“It can therefore be assumed that the public was aware that the right to abortion was included in the federal constitutional right to privacy and would therefore certainly be covered by the Florida Privacy Amendment,” he said. -he writes.

Three decades later, there is now a reconstituted Florida Supreme Court headed by Chief Justice Charles Canady, a former Republican congressman who worked as former Governor Jeb Bush’s top lawyer before being appointed to a court. appeal by Bush. Former Governor Charlie Crist – while still a Republican – nominated Canady to the state Supreme Court.

Canady’s wife, Jennifer Canady, is a candidate for the Florida House as a Republican from Lakeland and on her campaign website states that she is committed to “advocating for the rights of the unborn child”.

Canady has often run into sharp divisions with other justices when left-leaning colleagues hold the majority. But the leadership of the seven-member court shifted sharply after DeSantis took office in 2019, as three justices reached retirement age.

DeSantis, who called U.S. Supreme Court Justice Clarence Thomas “the greatest justice alive,” got five picks because two of his appointees were elevated to a federal appeals court by the former President Donald Trump. Among the current justices is Carlos Muñiz, who worked for DeVos and also served prominently under then-Attorney General Pam Bondi. Muñiz, who also worked for Bush when he was governor, had never been a judge before his appointment, but will assume the post of chief justice later this summer.

This revamped Florida court overturned several previous rulings, including a landmark death penalty case in which a majority of judges overturned a 2016 ruling that required a unanimous jury recommendation for a death sentence. This decision from two years ago called the previous decision “error” and “wrong”.

Jason Unger, a seasoned Tallahassee lawyer who spent 11 years on the nominating committee that recommends gubernatorial candidates, said “you have some very smart, serious judges in this court who really believe the text of the law.” .

Since DeSantis became governor, the Florida Supreme Court has handed down only one notable decision against him or the GOP-controlled legislature. Justices in 2020 found that DeSantis’ choice for a Supreme Court vacancy did not qualify under the state Constitution and forced him to choose another nominee.

Stemberger, who worked on an amicus court brief filed in the 1989 parental consent case, says he would expect the state Supreme Court to unravel the earlier abortion ruling, calling the judges of “fierce textualists” who would only rely on the language of the state constitution.

Those on both sides of the abortion fight expect more restrictions to eventually be considered by the Legislative Assembly, perhaps starting with a bill banning all abortions at six weeks or when opponents to abortion argue that a fetal heartbeat is detected.

“The safeguards are lifted if this draft opinion becomes final,” said Dan Gelber, a former state legislator and Democratic mayor of Miami Beach, whose cabinet has been involved in several constitutional cases. “I don’t think there’s any doubt that the legislature and the governor will want to exploit the Supreme Court’s apparently pending decision in any way. I would be surprised if they didn’t.


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