Barbara Pariente served on the Florida Supreme Court for more than twenty years and is now retired. She was astonished by that court’s recent decision to approve a six-week ban on abortion, because the state constitution explicitly protects privacy rights, which unquestionably—until now—included abortion decisions.
On April 1, the Florida Supreme Court, in a 6–1 ruling, overturned decades of decisions beginning in 1989 that recognized a woman’s right to choose—that is, whether to have an abortion—up to the time of viability.
Anchored in Florida’s own constitutional right to privacy, this critical individual right to abortion had been repeatedly affirmed by the state Supreme Court, which consistently struck down conflicting laws passed by the Legislature.
As explained first in 1989:
Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one’s body in the course of a lifetime.
Tellingly, the justices at the time acknowledged that their decision was based not only on U.S. Supreme Court precedent but also on Florida’s own privacy amendment.
I served on the Supreme Court of Florida beginning in 1998 and retired, based on our mandatory retirement requirement, a little more than two decades later. Whether Florida’s Constitution provided a right to privacy that encompassed abortion was never questioned, even by those who would have been deemed the most conservative justices—almost all white men back in 1989!
And strikingly, one of the conservative justices at that time stated: “If the United States Supreme Court were to subsequently recede from Roe v. Wade, this would not diminish the abortion rights now provided by the privacy amendment of the Florida Constitution.” Wow!
In 2017 I authored an opinion holding unconstitutional an additional 24-hour waiting period after a woman chooses to terminate her pregnancy. Pointing out that other medical procedures did not have such requirements, the majority opinion noted, “Women may take as long as they need to make this deeply personal decision,” adding that the additional 24 hours stipulated that the patient make a second, medically unnecessary trip, incurring additional costs and delays. The court applied what is known in constitutional law as a “strict scrutiny” test for fundamental rights.
Interestingly, Justice Charles Canady, who is still on the Florida Supreme Court and who participated in the evisceration of Florida’s privacy amendment last week, did not challenge the central point that abortion is included in an individual’s right to privacy. He dissented, not on substantive grounds but on technical grounds.
So what can explain this 180-degree turn by the current Florida Supreme Court? If I said “politics,” that answer would be insufficient, overly simplistic. Unfortunately, with this court, precedent is precedent until it is not. Perhaps each of the six justices is individually, morally or religiously, opposed to abortion.
Yet, at the same time, and on the same, by a 4–3 majority, the justices—three of whom participated in overturning precedent—voted to allow the proposed constitutional amendment on abortion to be placed on the November ballot. (The dissenters: the three female members of the Supreme Court.) That proposed constitutional amendment:
Amendment to Limit Government Interference With Abortion:
No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.
For the proposed amendment to pass and become enshrined in the state constitution, 60 percent of Florida voters must vote yes.
In approving the amendment to be placed on the ballot at the same time that it upheld Florida’s abortion bans, the court angered those who support a woman’s right to choose as well as those who are opposed to abortion. Most likely the latter groups embrace the notion that fetuses are human beings and have rights that deserve to be protected. Indeed, Chief Justice Carlos Muñiz, during oral argument on the abortion amendment case, queried the state attorney general on precisely that issue, asking if the constitutional language that defends the rights of all natural persons extends to an unborn child at any stage of pregnancy.
In fact, and most troubling, it was the three recently elevated Gov. Ron DeSantis appointees—all women—who expressed their views that the voters should not be allowed to vote on the amendment because it could impact the rights of the unborn child. Justice Jamie Grosshans, joined by Justice Meredith Sasso, expressed that the amendment was defective because it failed to disclose the potential effect on the rights of the unborn child. Justice Renatha Francis was even more direct writing in her dissent:
The exercise of a “right” to an abortion literally results in a devastating infringement on the right of another person: the right to live. And our Florida Constitution recognizes that “life” is a “basic right” for “[a]ll natural persons.” One must recognize the unborn’s competing right to life and the State’s moral duty to protect that life.
In other words the three dissenting justices would recognize that fetuses are included in who is a “natural person” under Florida’s Constitution.
What should be top of mind days after the dueling decisions? Grave concern for the women of our state who will be in limbo because, following the court’s ruling, a six-week abortion ban—before many women even know they are pregnant—will be allowed to go into effect. We know that these restrictions will disproportionately affect low-income women and those who live in rural communities.