What do face masks have to do with abortion rights? FL’s First District Court of Appeal explains

By: - June 15, 2021 7:00 am

A surgical mask and a KN95 mask hang on display for sale at a pharmacy. Photo by Sean Gallup/Getty Images.

Abortion rights give women power to make decisions about their very lives and health. Mask mandates are public-health measures designed to curtail transmission of a virus that can ruin people’s health or kill them.

One might think the two have nothing to do with each other. An intermediate state appeals court has concluded otherwise.

The First District Court of Appeal, ruling last week, concluded that Alachua County’s mask mandate, intended to fight COVID, was “presumptively unconstitutional” under a Florida Supreme Court precedent that took a broad view of the Florida Constitution’s guarantee of personal privacy in an abortion case.

“The right to be let alone by government does exist in Florida, as part of a right of privacy that our Supreme Court has declared to be fundamental,” wrote Judge A.S. Tanenbaum in a 2-1 opinion with Judge Robert Long Jr.

In fact, he continued, “the Supreme Court has construed this fundamental right to be so broad as to include the complete freedom of a person to control his own body. Under this construction, a person reasonably can expect not to be forced by the government to put something on his own face against his will.”

Judge Joseph Lewis Jr. dissented, expressing distaste at equating abortion right with defiance of mask mandates.

Judge Joseph Lewis Jr. of Florida’s First District Court of Appeal. Credit: 1st DCA

“It would be irrational, and downright repugnant, to liken a woman’s fundamental right to choose to end her pregnancy or an unnecessary interference with that right, which is indisputably a deeply personal decision and involves bodily integrity and personal autonomy, to a requirement that a person wear a facial covering when interacting with members of the public during a pandemic so as to curtail the spread of a contagious virus,” Lewis wrote.

It’s not clear yet whether Alachua County will appeal, but the underlying issue is before the state high court in an appeal from a Fourth District Court of Appeal ruling upholding a similar mandate in Palm Beach County.

Friday’s First District ruling sends the case back to Circuit Judge Donna Keim in Alachua County, who’d rejected plaintiff Justin Green’s request for an injunction against enforcement of the mandate.

Jeff Childers, the Gainesville attorney representing Green, suggested in a phone interview that Lewis’ dissent “shows his political leanings, but he never actually explained what principle he was using to make that distinction. It seemed like maybe it was obvious to Judge Lewis, to the extent he didn’t have to explain it to anybody.”

In the abortion case at issue, “the Florida Supreme Court said pretty specifically that anything that invades bodily autonomy is presumptively unconstitutional. Judge Lewis seems to be saying that the Florida Supreme Court didn’t mean what it said,” Childers continued.

Tanenbaum cited Gainesville Woman Care v. State, a 2017 ruling in which the high court blocked enforcement of a state law requiring women to wait 24 hours before undergoing abortions, on the ground it violated the state’s constitutional privacy right.

Strict scrutiny

The high court, ruling before Gov. Ron DeSantis replaced the old liberal wing with conservative justices, said that any law challenged under the Florida Constitution’s right to privacy must withstand “strict scrutiny” — meaning it must be narrowly tailored to meet a compelling government interest.

That’s the highest burden possible in constitutional litigation because it means an ordinance or law is presumed unconstitutional unless a government can express a strong enough justification.

Article I Section 23 of the Florida Constitution holds: “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.” The state Supreme Court has ruled that this language goes beyond the U.S. Constitution’s protections.

In the Alachua case, a succession of emergency orders by the county required people to wear face masks and socially distance themselves in public places, including restaurants, grocery stores, retail establishments, construction sites, or public transit, subject to fines.

The First District began by rejecting arguments that the case was moot — meaning that it presented no legitimate dispute.

That would have been because DeSantis overrode all emergency local mask mandates in May through an executive order. But that order, Tanenbaum wrote, does not prevent the county from reenacting a mandate through regular procedure, meaning the issue could arise again.

The county had scheduled its mandate to lift one week after the governor’s order in any case, said Mark Sexton, spokesman for the county commission. The commissioners haven’t decided whether to appeal, he said.

To Lewis, the matter was simple:

“The trial court could not grant appellant’s requested relief of an injunction enjoining the county from enforcing the mask mandate contained in its emergency order because that order is no longer in effect, and so there is no enforcement to be enjoined,” he wrote.

Judge A.S. Tanenbaum of Florida’s First District Court of Appeal. Credit: 1st DCA

‘Diktats’ and ‘fiats’

In his majority opinion, Tanenbaum was outright snarky about Alachua’s orders, calling them “diktats” and “fiats.” He complained the county encouraged residents to act as “whispering informants” against scofflaws.

Tanenbaum stressed: “To be clear, we are not saying that the mask mandate in fact was unconstitutional. If, however, Green persists in his challenge to some new mask mandate that the county adopts, the trial court would have to start its analysis with this presumption of unconstitutionality.”

Lewis utterly rejected that position.

“A person’s privacy right is not absolute and is not to be considered in isolation, without regard for the circumstances under which the right is asserted. When a person chooses to be around fellow citizens, his or her decisions and actions affect others,” he wrote.

“Persons who are unwilling to be subject to any inconvenience, however minimal, for the protection of others around them may choose to remain in the privacy of their own home, free from any government intrusion. As the trial court aptly stated, a person’s right to be let alone is no more precious than his fellow citizen’s right not to become infected by him with a contagious, airborne, and potentially fatal virus.”

To Cynthia Harris, incoming president of Florida NOW, the majority’s logic was “a stretch.” Women’s lives and health can hinge on access to abortion, she said.

“That affects you and maybe the person you were involved with. When you’re talking about a public-safety, health narrative, you’ve got a whole bunch of people, thousands of people, that can be affected by you not protecting yourself or taking the proper measures to protect others. It’s apples and oranges to me.”

Sexton, the county’s spokesman, argued that, in any case, the court didn’t say local governments can’t under any circumstances require mask wearing during public health emergency.

“It suggests that counties should be held to a standard of proving a pressing government need to do this type of thing. Frankly, we think that, back when COVID was at its peak and it was crucial for local governments to react, we think we could have met that standard. So, we really don’t think this order changes much,” he said.

“If you’re in the middle of a global pandemic that is killing hundreds of thousands of people in the United States and millions worldwide, we think we could prove a pressing government need.”

Plaintiff’s attorney Childers, meanwhile, disputed the suggestion that masks are harmless.

His client, for example is a nursery owner whose employees the county required to wear masks while working in “100 degree Florida heat working with dirt all day long,” Childers said. “He was really concerned more about his employees than anything else.”

“There are some people who aren’t doing well with them, and they’ve been left behind. I feel like I’m working for those folks who have been sort of ignored and left behind by this whole process, and people aren’t taking them seriously or they’re thinking that they’re making it up or whatever.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.