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Originalism or anti-abortion: Florida's Supreme Court must choose - Column
James W. Fox Jr. is a professor of law at Stetson University College of Law.Originalism or anti-abortion: Florida’s Supreme Court must choose | Column
Archived article: https://archive.ph/p2TOu
Originalism and the anti-abortion movement are on a collision course in Florida. The people of Florida adopted a right of privacy in 1980 knowing it covered abortion rights. Any reasonable view of originalism — the philosophy frequently trumpeted by Gov. Ron DeSantis and his judicial nominees that says courts should defer to how the public understood constitutional text at the time it as adopted — would require the court to protect those rights.
Yet the state has asked the Florida Supreme Court to overturn decades of case law and re-write the constitution to eliminate this protection. This would constitute a startling exercise of judicial activism from the Florida Supreme Court. The court can be either originalist or anti-abortion. It cannot be both.
The U.S. Constitution does not explicitly protect privacy. Federal decisions such as Roe v. Wade and the contraception cases of Griswold v. Connecticut and Eisenstadt v. Baird instead implied the right of privacy from the text. In 1980, seven years after Roe, Floridians protected more fully their privacy rights by adding a “Right to Privacy” provision to the state constitution, securing to everyone “the right to be let alone and free from governmental intrusion into the person’s private life.” As Justice Ben Overton, one of the provision’s initial drafters, wrote in 1989, Floridians “codified within the Florida Constitution the principles of Roe v. Wade ... as it existed in 1980.”
Because Floridians placed this right into the state constitution, the U.S. Supreme Court’s recent overturning of Roe does not change the fact that under state law the right to privacy was understood by the voters who adopted it to protect abortion. As a dissenting justices in the 1989 Florida case overturning a parental consent law noted, overturning Roe “would not diminish the abortion rights now provided by the privacy amendment of the Florida Constitution.”
Yet the state has asked the Florida Supreme Court to overturn decades of case law and re-write the constitution to eliminate this protection. This would constitute a startling exercise of judicial activism from the Florida Supreme Court. The court can be either originalist or anti-abortion. It cannot be both.
The U.S. Constitution does not explicitly protect privacy. Federal decisions such as Roe v. Wade and the contraception cases of Griswold v. Connecticut and Eisenstadt v. Baird instead implied the right of privacy from the text. In 1980, seven years after Roe, Floridians protected more fully their privacy rights by adding a “Right to Privacy” provision to the state constitution, securing to everyone “the right to be let alone and free from governmental intrusion into the person’s private life.” As Justice Ben Overton, one of the provision’s initial drafters, wrote in 1989, Floridians “codified within the Florida Constitution the principles of Roe v. Wade ... as it existed in 1980.”
Because Floridians placed this right into the state constitution, the U.S. Supreme Court’s recent overturning of Roe does not change the fact that under state law the right to privacy was understood by the voters who adopted it to protect abortion. As a dissenting justices in the 1989 Florida case overturning a parental consent law noted, overturning Roe “would not diminish the abortion rights now provided by the privacy amendment of the Florida Constitution.”
The state now wants the Florida Supreme Court to overturn decades of precedent, uphold a 15-week abortion ban, and clear the way for more aggressive abortion bans. But the state has a problem. The text of the constitution uses the very terms that were central to the Griswold-Roe line of cases.
The author of this column wrote a paper that I read a few months ago, An Historical and Originalist Defense of Abortion in Florida. I thought about it yesterday and thought it would make an interesting post for anyone that is interested in reading about the legal history of abortion in the state of Florida. Link below:
An Historical and Originalist Defense of Abortion in Florida