Florida’s firewall against abortion restrictions is in peril

“I don’t think anyone is naive to the fact that the Supreme Court of Florida has become more conservative,” said state Rep. Anna Eskamani (D-Orlando), who used to work for Planned Parenthood. “But they have yet to decide on an abortion case. This is going to be the first in a long time.”

Florida’s recently-approved abortion ban is drawing increased scrutiny amid the national debate over abortion rights after the disclosure of the Supreme Court’s initial draft opinion overturning the 1973 Roe v. Wade decision. The American Civil Liberties Union of Florida has vowed “legal action” to challenge Florida’s ban, and has indicated that it could use the right to privacy 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 the right to privacy and abortion,” Daniel Tilley, legal director for ACLU Florida, said in an email. “The Florida Supreme Court has consistently held ever since that the state Constitution protects the right to abortion against government intrusion like the 15-week ban. We hope that they will continue to do so.”

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

Florida is one of 11 states whose state constitutions and courts have put in place abortion rights independent of the US Constitution. The urgent question among abortion-rights supporters is what will happen if the abortion case makes it to the state high court, whose ranks include a former congressman who helped lead the impeachment of former President Bill Clinton and the one-time top lawyer for former Education Secretary Betsy DeVos. The court has already shown a willingness to toss out previous precedents, though it has not yet ruled on an abortion case.

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

“It’s a superpowered abortion right, way more expansive and powerful than gnaws,” contends John Stemberger, a lawyer and president of the Florida Family Policy Council, a conservative anti-abortion rights group.

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

“Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy,” state Justice Leander Shaw wrote for the court at the time. “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.”

Stemberger and others opposed this decision, however, argue the court went beyond the meaning of the text of the privacy amendment and that legislators weren’t considering abortion rights when they placed it on the ballot. But in his concurring opinion of him, then-Chief Justice Raymond Ehrlich pointed out the privacy amendment was several years after Roe v. Wade had legalized abortion.

“It can therefore be presumed that the public was aware that the right to an abortion was included under the federal constitutional right of privacy and would therefore certainly be covered by the Florida privacy amendment,” he wrote.

Three decades later, there is now a reconstituted Florida Supreme Court led by Chief Justice Charles Canady, a former Republican member of Congress who worked as former Gov. Jeb Bush’s top lawyer before he was appointed to an appeals court by Bush. Former-Gov. Charlie Crist — while he was still a Republican appointed — Canady to the state Supreme Court.

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

Canady often clashed in sharp dissents with other justices when left-leaning colleagues held the majority. But the direction of the seven-member court swung sharply after DeSantis took office in 2019 because three justices reached retirement age.

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

This revamped Florida court has reversed several previous decisions, including a major death penalty case where a majority of justices threw out a 2016 decision that required a unanimous recommendation from a jury for a death sentence. That ruling from two years ago called the previous decision a “mistake” and “wrong.”

Jason Unger, a veteran Tallahassee attorney who spent 11 years on the nominating panel that recommends candidates to the governor, said that “you have on this court, very smart, serious justices who really believe in the text of the law.”

Since DeSantis became governor, the Florida Supreme Court has only issued one notable ruling against either him or the GOP-controlled Legislature. Justices in 2020 concluded that DeSantis’ pick for a Supreme Court vacancy was not qualified under the state Constitution and forced him to pick a different nominee.

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

Those on both sides of the abortion fight expect more restrictions to eventually be considered by the Legislature, possibly starting with a bill that would ban all abortions at six weeks or when abortion opponents contain a fetal heartbeat is detected.

“The guardrails are off if that draft opinion becomes final,” said Dan Gelber, a former state legislator and Democratic mayor of Miami Beach whose firm has been involved in several constitutional cases. “I don’t think there’s any question that the Legislature and the governor are going to want to exploit the Supreme Court’s apparent pending decision in every way. It would surprise me if they didn’t.”