Does the FL privacy clause protect a pregnant Floridian's liberty to choose to have an abortion?

[brucejoel99]

Right of privacy.-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. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law.

Do you believe that Florida's enumerated constitutional right to privacy, the existence of which is obviously an inherent contrast with the lack thereof for federal privacy rights, still serves to protect a pregnant Floridian's liberty to choose to have an abortion prior to the viability of their fetus as a matter of state constitutional law, independently of federal law?

"Yes" has been the legal viewpoint here in Florida since our Supreme Court ruled in their 1989 case, In re T.W., that the privacy clause protects the state-level constitutional right to an abortion & mandates the application of strict scrutiny to abortion restrictions, thereby requiring the courts to concede that all laws which wholly subordinate constitutional privacy interests & maternal health concerns to efforts that deter a woman & her doctor from making a decision that's theirs to make are unconstitutional. This holding was most recently upheld by the Court just 5 years ago in their 2017 case, Gainesville Woman's Care, LLC v. Florida. Indeed, one of the framers of the clause has even publicly said that one of the reasons they drafted it was to have something on the books that'd continue to protect Floridian reproductive rights in the event that Roe v. Wade was ever federally revisited & overturned by SCOTUS.

Of course, there now exists a 6-1 conservative supermajority on our Supreme Court that wasn't there when an abortion case was most recently heard in 2017; back then, it was still 4-3 liberal. So, even if you believe that the clause protects the state-level constitutional right to an abortion, do you also believe that it can &/or will continue to do so, going forward?

(For context, there's otherwise only a single provision explicitly pertaining to abortion in the Florida Constitution: a 2004 measure that allowed the state legislature to pass a law requiring parents to be notified of a minor's decision to obtain one; the legislature then didn't end up taking the Constitution up on its offer to pass such a law for 16 years, 'til 2020, but still.)

[Skill and Chance]

Looks like  2 of the 3 conservatives dissented and 1 was recused in 2017.  Both of the dissenters are still on the court and only one member of the former majority is.  Based on this, I think it's very likely the ruling will be that it does not. It may not be 6/1, but they have 2 votes to spare.

Personally, I think explicit right to privacy language added to a state constitution shortly after Roe was decided does imply an "original intent" to protect abortion rights, but I don't expect the state high court to rule that way and they have wiggle room because the word abortion isn't mentioned. 

[brucejoel99]

Looks like  2 of the 3 conservatives dissented and 1 was recused in 2017.  Both of the dissenters are still on the court and only one member of the former majority is.  Based on this, I think it's very likely the ruling will be that it does not. It may not be 6/1, but they have 2 votes to spare.

Personally, I think explicit right to privacy language added to a state constitution shortly after Roe was decided does imply an "original intent" to protect abortion rights, but I don't expect the state high court to rule that way and they have wiggle room because the word abortion isn't mentioned.  

The sole conservative dissent of In re: T.W. agreed with you, FWIW:

I disagree that section 390.001(4)(a), Florida Statutes (Supp. 1988), is unconstitutional. On the other hand, there is much in the majority opinion with which I agree. I disagree with the majority not because I differ from its legal or philosophical conclusion on an adult woman's right of privacy and her right to make a personalized and unimpeded decision on whether to terminate a pregnancy. I have no problem in embracing the rationale of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), particularly when this state has adopted a constitutional right of privacy. I agree with the majority's discussion of this as it relates to adults. In short, if this case were on the subject of a legislative intrusion on an adult woman's right to have an abortion, I would concur.

Indeed, IIRC, even the aforementioned 2-justice conservative dissent from 2017 also wholly operated on the basis of In re: T.W. remaining good law, but the statute at hand - a 24-hour waiting period - not constituting a "significant" restriction for the purposes of applying it.

[brucejoel99]

Today's HB5 ruling is also relevant:

https://twitter.com/cheathwftv/status/1542549775056359426https://twitter.com/cheathwftv/status/1542550504827490305https://twitter.com/cheathwftv/status/1542558378181918721
As for the state's contention in response:

https://twitter.com/cnavarrowftv/status/1542571971724058624
Basically, it's as you alluded to, Skill and Chance: "it doesn't say abortion, so abortion doesn't count." Let's see what our justices end up having to say about it. Of course, even if the 2 dissenters from 2017 still agreed with the remaining member of that year's majority that T.W. is still good law, the remaining 4 justices are all FedSoc-vetted DeSantis appointees 🙃

[brucejoel99]

Also also, FWIW, the 2012 privacy reaffirmation referred to in one of the hitherto linked tweets was the 55.1% No/44.9% Yes rejection of 2012 Amndt. 6, which would've added explicit language to the Florida Constitution providing that it couldn't be interpreted by the courts as protecting abortion rights broader than those which are protected by the federal Constitution.

[Skill and Chance]

Also also, FWIW, the 2012 privacy reaffirmation referred to in one of the hitherto linked tweets was the 55.1% No/44.9% Yes rejection of 2012 Amndt. 6, which would've added explicit language to the Florida Constitution providing that it couldn't be interpreted by the courts as protecting abortion rights broader than those which are protected the federal Constitution.

IMO that really seals the on original intent/intent of the voters, then.  This looks very different from federal Roe/Casey.  If the conservative dissent in 2017 accepted the precedent that the written right to privacy covers abortion, then this really could be a close call.  That's 3 votes to keep the 1989 precedent that privacy covers abortion if they are consistent.

But to what extent does it cover abortion?  Abortion rights currently have a gestational limit in Florida.  Could they make a decision that both upholds the 15 week law and closes the door on a total ban? It could be the best thing that ever happened to DeSantis if they did.

[World politics is up Schmitt creek]

The legislative history of this text and the details of the 2012 referendum both imply an original public meaning that extends to abortion rights, yes. I'd go with that over a textualist approach here because of how vague the phrase "private life" is without any sociocultural context.

[MarkD]

What a goofy clause for the voters of FL to adopt into their state constitution. That clause can mean anything. It doesn't give the state legislature any guidelines at all for what laws they cannot pass, and it gives the state courts carte blanche to strike down any laws the state judges do not like. Or, perhaps, to put it another way, a clause like that can be thought of as being like the 9A in the US Constitution, in which case, it would be incumbent upon the FL judges to determine what are the enumerated powers of the FL state legislature, and prohibit the legislature from going beyond those powers. If that were not the appropriate methodology of interpreting the FL constitution, and the privacy clause had a meaning independent of analyzing enumerated powers, then any state judges could determine that the privacy clause not only protects a right to choose abortion, to use contraceptives, and to engage in "sodomy," but also a right to engage in "sex work" (a.k.a., in the good old days, prostitution) and even to inject heroin and/or various other narcotics into one's veins.

[RI]

What a goofy clause for the voters of FL to adopt into their state constitution. That clause can mean anything. It doesn't give the state legislature any guidelines at all for what laws they cannot pass, and it gives the state courts carte blanche to strike down any laws the state judges do not like. Or, perhaps, to put it another way, a clause like that can be thought of as being like the 9A in the US Constitution, in which case, it would be incumbent upon the FL judges to determine what are the enumerated powers of the FL state legislature, and prohibit the legislature from going beyond those powers. If that were not the appropriate methodology of interpreting the FL constitution, and the privacy clause had a meaning independent of analyzing enumerated powers, then any state judges could determine that the privacy clause not only protects a right to choose abortion, to use contraceptives, and to engage in "sodomy," but also a right to engage in "sex work" (a.k.a., in the good old days, prostitution) and even to inject heroin and/or various other narcotics into one's veins.

This is what I had been thinking about yesterday. If a privacy clause is wide enough to ensure you can not ban the purchase of a service involving multiple people, then how does this privacy clause not also prohibit bans on prostitution (arguably more "private" than an abortion as it involves fewer people), gambling, drug use, or even selling drugs? Shouldn't Florida be a libertarian paradise?

[Donerail]

What a goofy clause for the voters of FL to adopt into their state constitution. That clause can mean anything.

The Florida state constitution contains a combined ban on oil drilling and indoor vaping. A right to privacy is among the more serious constitutional provisions.

Or, perhaps, to put it another way, a clause like that can be thought of as being like the 9A in the US Constitution, in which case, it would be incumbent upon the FL judges to determine what are the enumerated powers of the FL state legislature, and prohibit the legislature from going beyond those powers.

It cannot be thought of in that way because the Florida legislature does not have enumerated powers (nor do most state legislatures). State legislatures can exercise legislative power without having to channel it through a specific set of enumerated categories.

and it gives the state courts carte blanche to strike down any laws the state judges do not like.

Given the composition of the Florida legislature, perhaps that is the goal?

[brucejoel99]

What a goofy clause for the voters of FL to adopt into their state constitution. That clause can mean anything. It doesn't give the state legislature any guidelines at all for what laws they cannot pass, and it gives the state courts carte blanche to strike down any laws the state judges do not like. Or, perhaps, to put it another way, a clause like that can be thought of as being like the 9A in the US Constitution, in which case, it would be incumbent upon the FL judges to determine what are the enumerated powers of the FL state legislature, and prohibit the legislature from going beyond those powers. If that were not the appropriate methodology of interpreting the FL constitution, and the privacy clause had a meaning independent of analyzing enumerated powers, then any state judges could determine that the privacy clause not only protects a right to choose abortion, to use contraceptives, and to engage in "sodomy," but also a right to engage in "sex work" (a.k.a., in the good old days, prostitution) and even to inject heroin and/or various other narcotics into one's veins.

This is what I had been thinking about yesterday. If a privacy clause is wide enough to ensure you can not ban the purchase of a service involving multiple people, then how does this privacy clause not also prohibit bans on prostitution (arguably more "private" than an abortion as it involves fewer people), gambling, drug use, or even selling drugs? Shouldn't Florida be a libertarian paradise?

What's the issue? Strict scrutiny should be applied just as equally to those activities & then be overcome on some of them, like unregulated gambling or the unregulated sale & usage of drugs, because in contrast to comprehensive reproductive health care (at least on the basis of presuming that we're still supposed to weigh competing interests against each other, because short of facing a state-threatening population decline that can't be avoided by any other means, the state has no demonstrably compelling interest in any given pregnancy as it suffers no negative effect when a pregnant woman decides to no longer bear a nonviable fetus), the state has a demonstrably compelling interest in prohibiting those activities, with those engaged in said activities not having much to contend in response other than that their privacy was violated insofar as the state now knows that they engage in said activities. As for prostitution, I honestly think that it's inconsistent for prohibitions on it to have not been overturned via SDP; after all, it's literally already legal in the status quo, so long as it's being filmed. So, this has been a kinda silly attempt at a legal "gotcha," at least if that's what this was supposed to be, lol