Michael Moline, Florida Phoenix
The Florida Supreme Court has scheduled oral arguments for Sept. 8 in a test of whether the justices will respect their 1989 ruling finding protection for abortion access in the Florida Constitution’s Privacy Clause.
In an order posted Friday, the court said arguments would begin at 9 a.m. that morning, a Friday, and that the justices would decide later how much time to allot the parties, which include Planned Parenthood affiliates versus the state government.
“NO CONTINUANCES WILL BE GRANTED EXCEPT UPON A SHOWING OF EXTREME HARDSHIP,” the order reads, with all-caps in the original.
The case involves the 15-week abortion ban that Gov. Ron DeSantis signed into law last year. Should the court overrule that 1989 precedent, the six-week ban he signed into law this year would take effect 30 days later.
The court has allowed the state to enforce the 15-week ban pending the outcome of the case, an indication the proceedings might not go well for the providers.
Voters approved the Privacy Clause in 1980. It reads: “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.”
Lawyers for the state have argued for reading the language narrowly to apply only to protection of citizens’ personal information. In a court pleading last summer, they cited the U.S. Supreme Court’s overruling of its own precedent in Roe v. Wade.
“That sea-change in federal law plainly warrants reconsideration of the Florida Supreme Court’s interpretation of Florida’s own constitutional right to privacy, and there will be great uncertainty in Florida until it does so,” they wrote.
The late Justice Leander Shaw took a more expansive view in the 1989 case, In re T.W. The amendment, he wrote then, “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.”
He added: “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.”
However, since taking office in 2019 DeSantis has stocked the court with avowed conservatives quite willing to overturn even long-established precedents.
Justice Charles Canady, who, according to the Tampa Bay Times, earned an anti-abortion reputation in his former job as a congressman, is married to Republican State Rep. Jennifer Canady, co-sponsor of the six-week abortion ban. He’s given no indication that he plans to recuse from the case.
Chief Justice Carlos Muñiz wrote in a 2004 article that “[o]ne purpose of the privacy amendment clearly was to give the abortion right a textual foundation in our state constitution,” The Washington Post reported this spring. Whether he still thinks that way, we’ll find out when the court rules.
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