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Q&A of the Day – What Florida’s Privacy Amendment Has to do w/Florida’s New Abortion Law
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Bottom Line: The year was 1980 and the Proposed Constitutional Amendment pertaining to privacy was Amendment 2 (of five on that year’s Ballot). The Summary which appeared on voters' ballots was short and sweet it stated:
- Proposing the creation of Section 23 of Article I of the State Constitution establishing a constitutional right of privacy.
Now here’s the thing about this kind of language involving something as significant as a constitutional amendment. How many voters do you think really understood what creating a Section 23 of the first Article of Florida’s Constitution meant? We’ve talked a lot about the unintended consequences and marketing efforts behind proposed constitutional amendments which have made their way onto ballots, most commonly passing over the years. It’s not a new phenomenon in Florida. 1980’s Amendment 2 was a classic case. The amendment which passed with just over 60% of the vote came down to the idea of establishing a constitutional right of privacy. Most Floridians at the time simply heard that and read that on a ballot and voted for it as a result. But what exactly was it? That’s always been a somewhat open-ended question and it relates directly to Judge John Cooper’s ruling to at least temporarily block Florida’s new abortion law, limiting abortions, from the 24-week threshold established by the Supreme Court under Roe, to 15 weeks.
Here is the actual text of Article I Section 23 of Florida’s Constitution as amended in 1980:
- 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.
You don’t need to be a legal scholar to likely realize that the definition of what constitutes “governmental intrusion” in private life is something that’s rather open ended and free to interpretation. I’d imagine most of us could think of various ways we feel the government regularly intrudes in our private lives “legally”. Don’t tread on me bumper stickers and flags exist for a reason. Given the open-ended nature of the amendment it was bound to be met with legal challenges testing the extent of its reach and that’s exactly what happened in 1989 when a case about teenage girls and parental consent for abortions reached Florida’s Supreme Court.
The case in question was advanced by the National Organization for Women and the ACLU of Florida, on behalf of a 15-year-old girl who said if her mother knew of the pregnancy she would “kill her”. The Florida Supreme Court, by a 6-1 margin, struck down a Florida law which mandated parental consent for minors prior to an abortion. The court used 1980’s Amendment 2, or right to privacy, as the justification for siding with the 15-year-old girl having an abortion without parental knowledge or consent. This particular case showed the tangled web woven by such an open-ended amendment – as the ruling essentially eroded parental rights in Florida as the court ruled a minor, whose signature isn’t even legal, had a right to medical privacy from even their parents. And this takes us back to Leon County Circuit Court Judge John Cooper’s injunction. Thursday he specifically ruled...
- Florida passed into its Constitution an explicit right of privacy that is not contained in the U.S. Constitution. The Florida Supreme Court has determined, in its words, 'Florida's privacy provision is clearly implicated in a woman's decision of whether or not to continue her pregnancy.
So, Cooper leaned on 1980’s Amendment 2 and the Florida Supreme Court’s 1989 ruling on a minor’s established right to medical privacy as the logic to hold up Florida’s 15-week limit on abortion. With the back story and the history behind how we got here it's understandable to see why he ruled the way he ruled. If he wanted to find a reason to rule against Florida’s new abortion law, and John Cooper has a near-twenty-year history of being a left-leaning judge at his current post, he had it. The ruling is essentially this. The state mandated a 15-week limit for abortions. The state, under Florida’s Constitution, doesn’t have a right to interfere with medical privacy period. In other words, if a woman wants an abortion and a doctor is willing to perform it – it could happen theoretically at any time up to birth. While the focus has been on the implications of Florida’s new abortion law being held up – what really hasn’t gained attention are the implications. This ruling didn’t just hold up Florida’s new abortion law – it potentially expanded abortions lawfully performed in Florida in a dramatic way.
Given Cooper’s ruling, there’s a legal process set to play out, first in his court, potentially in an appeals court and perhaps eventually in the Florida Supreme Court if needed. Governor DeSantis is promising an appeal to Florida’s high court if necessary. Just as we saw a subsequent SCOTUS ruling on Roe strike down the original one, we may be setup to see the current Florida Supreme Court positioned to strike down the 1989 ruling – which would potentially have farther reaching implications than just allowing Florida’s 15-week limit become law. To be continued...