Florida Constitution shields abortion rights — but might not for much longer

The DeSantis court seems poised to reverse a 33-year precedent

By: - May 18, 2022 7:00 am

Abortion rights protesters gather in front of the Florida Supreme Court on May 3, 2022. Credit: Danielle J. Brown

The Florida Supreme Court’s embrace of abortion rights was sweeping, extending not only to adults but also to minors who feared abuse at the hands of parents or guardians should they reveal that they were pregnant.

But that was in 1989 — more than three decades ago — in a case called In re T.W. Recent interviews with legal experts on both sides of the abortion debate left little doubt that today’s Florida Supreme Court, rendered solidly conservative by Gov. Ron DeSantis’ judicial appointments, would reach a vastly different conclusion.

Some 8,000 protestors on both sides of the abortion issue paraded for legislators who convened a special session of the FL Legislature in 1989. Photo by Mark Foley. State Library & Archives of Florida.

The court hasn’t ruled in an abortion case in years, said Bob Jarvis, a professor of constitutional law at Florida’s Shepard Broad College of Law, of Nova Southeastern University.

“On the other hand, we do know that this is a court that has been put together in large part by DeSantis. It’s a very conservative court. It’s a very Republican court. It’s a Federalist Society Court. As a result, I don’t think I’m really at risk of being contradicted when I say this court will approve any anti-abortion legislation that is put in front of it,” Jarvis said.

“We already have abortion laws that would directly collide with In re T.W.,” including the state’s new 15-week ban, Mat Staver, chairman of Liberty Council, which litigates in support of Christian conservatives, told the Phoenix in a phone interview.

“So, there’s no question that would be a quick vehicle to bring before the court and have them reconsider and, frankly, overturn In re T.W. Which we would certainly be involved in that kind of litigation.”

In re T.W.

In the 1989 case, a majority opinion by the late Justice Leander Shaw Jr. invalidated a statute requiring parental consent to abortions for minors.

The late Leander Shaw Jr. Credit: Florida Supreme Court

“Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy. 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.

The issue lives again because of the likelihood, based on a leaked draft opinion by Justice Samuel Alito of the U.S. Supreme Court, that that court will overrule Roe v. Wade, the 1973 ruling invalidating state laws restricting abortion, especially within the first trimester of pregnancy.

The Florida Legislature didn’t even wait for that draft to appear — much less the court’s formal ruling in a Mississippi case, expected around the end or June or early July — to rush a ban on abortions after 15 weeks’ gestation. When DeSantis signed it into law on April 14, legislative sponsors made clear they hoped to ban all abortions once the courts give the green light.

Newly appointed Florida Supreme Court justice Carlos Muñiz at a press conference, Jan. 22, 2019. Julie Hauserman photo.

The Florida measure takes effect on July 1, the very day that Carlos Muñiz is slotted to take over as the state’s chief justice. The other Florida Supreme Court justices jumped him over Justice Alan Lawson for the post — according to the Florida Bulldog, an investigative news site — because the other justices deemed Lawson, who was more senior, too moderate.

Lawson, a veteran of the trial and appellate benches before his elevation to the high court, subsequently retired.

Muñiz has had more of a political career, working for figures including former Gov. Jeb Bush, Attorney General Pam Bondi, and U.S. Secretary of Education Betsy DeVos, plus stints in the private sector. He’s one of the conservatives DeSantis appointed shortly after taking office in 2019.

A U.S. Supreme Court ruling overturning Roe clearly would eliminate federal protection for abortion rights. The T.W. case established separate justification for abortion rights under the Florida Constitution. Specifically, a privacy right that the voters approved in 1980.

‘Free from government intrusion’

“Every natural person has the right to be let alone and free from governmental intrusion into his 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,” the amendment, enshrined as Article I Section 23 of the state’s governing charter, proclaims.

In his majority opinion, Shaw noted that the U.S. Supreme Court had long recognized states’ right to protect privacy rights more extensively than does the U.S. Constitution.

And, just four years prior to his ruling, in Winfield v. Division of Pari-Mutuel Wagering, the state court specifically declared that the amendment did exactly that.

The amendment “was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words ‘unreasonable’ or ‘unwarranted’ before the phrase ‘governmental intrusion’ in order to make the privacy right as strong as possible,” Shaw wrote.

“Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.”

Abortion decisions belongs to minors, too, Shaw continued, citing “the unambiguous language of the amendment: ‘The right of privacy extends to every natural person.’

“Minors are persons in the eyes of the law and constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults … possess constitutional rights,” he concluded.

‘Least intrusive means’

To justify intrusion into personal privacy, the court ruled, the government must establish a compelling state interest through “the least intrusive means.”

The court reiterated its conclusion in 2003, in striking down an abortion parental notification statute.

Bob Jarvis. Credit: Nova Southeastern University

“I think he thought that [reliance on the Florida Constitution] would protect the decision from a future right-wing court,” Jarvis said of Shaw’s reasoning. “I don’t think he could have foreseen just how right-wing a court we were going to have.”

Florida is one of 11 states in which courts have found at least some protection for abortion rights under their state constitutions, according to the Center for Reproductive Rights. The others are Alaska, Arizona, California, Iowa, Kansas, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico.

At least 22 states have laws or constitutional amendments in place to quickly ban abortion, according to the Guttmacher Institute.

Planned Parenthood officials in Florida declined to address whether they plan to sue to enforce the privacy right but remained optimistic.

“Years of precedent make clear that, even after the likely fall of Roe v. Wade, abortion rights will still be protected in Florida due to the strong privacy protections in our state constitution,” Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, said via email.

Officials of the ACLU of Florida definitely plan to sue. They said so in a written statement the day DeSantis signed the legislation.

‘A radical step’

“Abortion is still legal across the country. The ACLU plans to continue taking legal action in Florida to challenge abortion bans, like the 15-week ban signed into law recently,” the statement reads.

“Interpreting Florida’s constitutional privacy protections differently would require the Florida Supreme Court to overrule decades of precedent in a manner not only inconsistent with its own previous rulings but also inconsistent with the law of precedent.

“Overruling decades of Florida Supreme Court precedents recognizing a fundamental right of privacy, including abortion, under the state Constitution would be a radical step that could not only threaten meaningful access to abortion in Florida but would also invite significant additional incursions by politicians into Floridians’ daily lives.

“There is no greater governmental intrusion into a person’s private life than politicians forcing people to continue a pregnancy against their will. We will never stop fighting for access to safe and accessible abortion care.”

‘A complete fabrication’

Anna Eskamani, meanwhile, a state House Democrat from Orange County who worked for Planned Parenthood before becoming a freelance consultant, expects a legal challenge.

Rep. Anna Eskamani rallies against anti-abortion legislation.
Sept. 21, 2021. Credit: Danielle J. Brown

“I don’t see a world where a lawsuit isn’t filed. Better to fight like hell than to not fight at all,” she wrote in an email to the Phoenix.

Assuming that happens, Liberty Counsel’s Staver expects to make the same argument that he co-wrote in an amicus brief in T.W. all those years ago: That the privacy amendment was never intended to protect abortion rights.

“The interest was to protect individuals’ documents from public disclosure and to keep that private. It was never intended for abortion or end of life issues. It was a complete fabrication of the text that happened in 1989, like the original Roe v. Wade was of the [U.S.] Constitution in 1973,” Staver said.

“The question is not how severe the ban is. The question is whether the Florida Supreme Court has the constitutional ground on which to make its decision. And the answer to that is no. And I think the majority of the Florida Supreme Court would conclude that In re TW was wrongly decided and overrule it,” Staver said.

Even advocates for stare decisis recognize the need to overturn some precedents, Staver argued.

“They would agree with overturning Dredd Scott,” the 1856 U.S. Supreme Court holding that Blacks were not citizens of this country, he said.

You have to respect precedent but, when it’s wrong from the beginning, you don’t continue to make the same mistake over and over again.

– Mat Staver, Liberty Counsel

“You have to respect precedent but, when it’s wrong from the beginning, you don’t continue to make the same mistake over and over again. I think that would be the same analysis that would win the day in the Florida Supreme Court.”

On that point, Jarvis of Nova Law pointed to the court’s 2020 ruling in State v. Maisonette-Maldonado, overturning a precedent involving double jeopardy, or the constitutional prohibition against trying someone twice for the same crime.

Precedents in trouble

Gov. Ron DeSantis signed Florida’s 15-week abortion ban into law on April 14, 2022. Credit: Governor Ron DeSantis Facebook.

The specific question involved Florida’s single-homicide rule, testing whether the accused could be tried separately for fleeing and eluding causing serious bodily injury or death and also vehicular manslaughter arising from the same deaths. The court’s precedent didn’t allow that. But the DeSantis court rejected that conclusion.

The ruling resulted in a tougher sentence for a man convicted in three killings.

Justice Ricky Polston explained the court’s thinking about precedent in that case:

“When we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, precedent normally must yield. But once we have chosen to reassess a precedent and have come to the conclusion that it is clearly erroneous, the proper question becomes whether there is a valid reason why not to recede from that precedent.”

Justice Ricky Polston. Credit: Florida Supreme Court

The “critical consideration” in these decisions involves the degree to which people have relied on the precedent to conduct their lives and businesses and avoid breaking the law, Polston continued.

Jarvis figures abortion opponents will easily persuade the court that no one seeking an abortion now would be relying on the 1989 precedent.

“Overturning T.W. is going to be very, very easy for this court. Not only are they ideologically predisposed to doing so; they were in large part put onto the court because they were anti-abortion,” he said.

“Just like the U.S. Supreme Court is not bothered by the fact that Roe has been the law of the land for almost 50 years, I don’t think this court is going to sweat at all the fact that T.W. and cases like it have been the law here in Florida for almost as long,” he said.

Note: This story has been update to include a written statement from the ACLU of Florida.

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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.