The Florida Supremes await the chance to ban abortion here once Roe v. Wade reversed

A pro-abortion rally organized last week by the Florida Planned Parenthood Alliance outside the Florida Supreme Court. Photo: Danielle J. Brown, Phoenix of Florida

By Noreen Marcus,

The Florida Supreme Court laid the groundwork to end abortion in Florida and it appears to be stepping up that effort now that Roe v. Wade is doomed.

Unlike the United States Constitution, the Florida State Constitution explicitly protects privacy in Article I, Section 23: “Right to Privacy – Every individual has the right to be left alone and safe from government intrusion into the individual’s privacy. »

This 1980 amendment could be invoked to protect abortion in Florida if and when the U.S. Supreme Court overturns Roe v. Wade. The state Supreme Court applied its powerful language to abortion 33 years ago.

“Florida’s privacy provision is clearly implicated in a woman’s decision whether or not to continue with her pregnancy,” Judge Leander Shaw wrote in the landmark 1989 decision In re:TW. “We can conceive of few additional personal or private decisions about one’s body that one can make in a lifetime.”

But the current Florida Supreme Court, with its conservative supermajority, appears to view the state’s independent right to privacy as an obstacle to achieving the goal of ending abortion in the state.


Judges “write notes on giving [Gov. Ron] DeSantis and the Legislature all they want on abortion,” said a court insider who contacted Florida bulldog on condition of anonymity due to the sensitivity of the subject.

“These right-wing judges are already writing secret memos on how to change this [In re: TW ruling] so abortion may be illegal in Florida again,” the insider wrote last week. “One of the reasons they got rid of justice [Alan] Lawson was because he thought it was a bad idea to do that.

Florida Supreme Court. Bottom row (lr): Justice Ricky Polston, Chief Justice Charles T. Canady, Justice Jorge Labarga. Top row (lr): Judge John D. Couriel, Judge Alan Lawson, Judge Carlos G. Muñiz, Judge Jamie R. Grosshans.

Lawson, who was ousted as chief justice when he was next in line for the job, recently announced he would retire on August 31, shortly after Justice Carlos Muniz took over the post. rod. Muniz had a lengthy resume as a Republican operative but no court experience when DeSantis nominated him to the Supreme Court in 2019.

Lawson, 60, could have sat on the court for another 15 years before reaching the mandatory retirement age of 75. He said he was leaving to pursue a variety of interests, including “family, health and fitness, spiritual growth and development, friends, outdoor sports that we enjoy, and charitable work in the United States.” United and abroad.

Neither Lawson nor court spokesman Paul Flemming responded to emails from Florida bulldog search for comment.


Florida will soon enforce a Mississippi-style law that prohibits abortion after the 15th week of pregnancy without exception for rape or incest.

The bill DeSantis signed last month provides exemptions that apply when a pregnancy poses a “serious risk” to the mother or when two doctors confirm in writing their diagnosis of a fatal abnormality in a fetus. The law will come into force on July 1.

Abortion advocates are pressuring DeSantis and the Florida Legislature to go further and join 13 states that will automatically ban abortion as soon as the U.S. Supreme Court overturns Roe v. Wade. The issue could be added to the agenda of a special session in Tallahassee later this month, Florida Politics reported.

Assuming the legislature passes an automatic ban, DeSantis signs it, and Roe is overturned as planned, pro-choice groups will surely file a legal challenge in Florida. Then the ban will end up in the Supreme Court for the judges’ review and final say on whether and how to enforce the state’s guarantee of confidentiality.

“I would expect the court to uphold any anti-abortion legislation the Florida legislature chooses to send to it,” said Robert Jarvis, a constitutional law professor at Nova Southeastern University in Davie.


Activists have been trying for 30 years to undermine Florida’s abortion law by moving the court to the right, he said.

“In 1992, while running to retain her seat on the Florida Supreme Court, Chief Justice Rosemary Barkett, the court’s first female judge, was targeted by groups like Florida Right to Life because of his support for abortion,” Jarvis said.

“Barkett retained his seat by a vote of 61% to 39% but the Tories have since worked to reshape the court,” he said.

They have grown in popularity in recent years. DeSantis is expected to appoint a fourth conservative justice to replace Lawson, meaning the governor will have installed a majority of the seven-member panel.

In this area, he surpasses former President Donald Trump, whose three additions to the United States Supreme Court — all approved, like DeSantis’ picks, by the Federalist Society — fall short of a majority of nine justices in DC.


Yet recent surveys suggest that the idea of ​​ending abortion is unpopular with most Floridians.

In February, when the State House passed the bill that became the new abortion law, 58% of a sample of registered voters said they opposed the bans, while 34% opposed the bans. were supporting, pollsters from the University of North Florida said. Tampa Bay Weather.

The majority of respondents believed that abortions should generally be legal and were opposed to any bans,” said the Time reported.

As recently as February 2017, a majority of Florida Supreme Court justices backed abortion. The court struck down a law that required a woman seeking an abortion to wait at least 24 hours between meeting a doctor and getting the procedure.

Judge Barbara Pariente quoted her late colleague Justice Shaw’s statement in In re:TW that the state’s privacy provision “is clearly implicated in a woman’s decision whether or not to sue.” her pregnancy”.


But the dissent in that case, Gainesville Woman Care v. State, says more about where abortion law in Florida is headed. It was authored by current Chief Justice Charles Canady, who during his previous career as a US Congressman coined the inflammatory term “partial birth abortion”.

“This Court has no evidence before it that a twenty-four hour waiting period is a meaningful restriction on the right to an abortion,” Canady wrote. “All we have are the pleadings – which are not evidence – and [a doctor’s] speculation that a duly enacted law would further impede the right to abortion.

As the Supreme Court went from liberal to conservative, the case continued its way through the court system. Finally, on April 25, the law on the waiting period came into force, seven years after its promulgation.

On Tuesday, Supreme Court Justice Samuel Alito’s first draft opinion that overturns Roe v. Wade was leaked and published by Politics.

The backlash was tumultuous, with Republicans and anti-abortion groups highlighting the leak and Democrats and pro-choice groups focusing on the content of Alito’s opinion. Protests and counter-demonstrations erupted across the country.


Now rapidly erected ‘non-scalable’ metal fencing encircles the United States Supreme Court building across from the United States Capitol in downtown Washington, DC

Janet Ferris, a former Tallahassee Circuit Court judge, said she sees a similar philosophy at work in decisions of the United States Supreme Court and the Florida Supreme Court.

“These decisions, the way they’re coming out, scare me,” Ferris said. “It’s putting women in a different class and saying, ‘We don’t care about your needs.’ ”

Both Alito in its draft opinion and the Florida Supreme Court in its recent opinions have shown a lack of respect for certain precedents, past decisions that challenge their ultra-conservative approach to the law. Alito states that Roe should be canceled because it was badly decided 50 years ago.

Since 2019, the Florida Supreme Court has, for example, struck down its own requirement for unanimous jury verdicts in capital cases. claiming that the case that set that standard was wrongly decided by the Liberal majority four years earlier.

At that time, the court acted “without legal justification” and ignored “decades of established Supreme Court and Florida precedent,” the unsigned notice said. “In these circumstances, it would be unreasonable for us not to back down [the earlier ruling’s] erroneous operations.


Judge Jorge Labarga, the court’s only remaining moderate, protested in a December dissent that “majority decisions have recently introduced a series of drastic changes in civil, criminal and regulatory contexts.”

Observers wonder whether the courts, by denying the link between privacy and abortion, will encourage abuses of other privacy-based rights such as birth control and interracial and same-sex marriage.

“We children of the 60s witnessed the evolution of so many rights and now their removal,” said Edith Georgi, a retired Miami-Dade attorney.

“We are appalled. Where have hope and idealism gone? How do I get it back?” she asked.

“The very courts we have celebrated have betrayed us by failing to honor their own historic precedent time and time again.”

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