by Adam Richardson
Earlier this year, Gov. Ron DeSantis signed a ban on nearly all abortions after 15 weeks of gestation. The law, which is being challenged in court, is unconstitutional under current Florida Supreme Court decisions interpreting something our state constitution has that the federal constitution doesn’t: An explicit right of privacy. That’s in article I, section 23, as adopted by voters in 1980.
The ban is meant to give the court an opportunity to revisit those precedents. When the latest case reaches the court, it will likely apply the mode of constitutional interpretation called originalism. The prevailing strain of originalism – public meaning originalism – insists that constitutional text means what the public understood it to mean at the time of its adoption.
Pro-life activists and the state have argued that the text and history of section 23 proves that it has nothing to do with abortion. In their view, the right protects only informational privacy, the right to control personal information, and not the right to an abortion, which is a component of the right to decisional privacy, a person’s right to make certain kinds of important decisions. In a column for the Tallahassee Democrat, conservative lawyer and activist John Stemberger said “it was clear to everyone (in 1980) that (section 23’s) purpose was for informational privacy.”
But that’s simply not true. I explain why in “The Originalist Case for Why the Florida Constitution’s Right of Privacy Protects the Right to an Abortion,” appearing in the Stetson Law Review next year. The proper starting point in interpreting section 23 is its language. It is extraordinarily expansive:
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.
A careful textual analysis in my article shows that this language protects far more than informational privacy. But let’s focus on history. The state’s Constitution Revision Commission (now also under threat of being undone) proposed the privacy right in 1978 as a package of proposals, but voters rejected all of them. Legislators put the right back on the ballot in 1980, and voters approved it. Not long after, in 1989, the Florida Supreme Court held in In re T.W. that section 23 protected the right to abortion, a holding it has repeatedly affirmed.
It is arguably true, as the state and pro-life activists fixate on, that legislators believed the right would protect informational privacy only. I say arguably because Stetson law professor James Fox explains in his own article, "An Historical and Originalist Defense of Abortion in Florida," appearing soon in the Rutgers University Law Review, and a column in the Tampa Bay Times that the evidence is not so clear. But what the legislators intended means little for our purposes: In public meaning originalism, it is what the people who adopted the proposed right – the voters – understood it to mean.
The proposed right was the subject of robust public debates in 1978 and 1980. The substance of those debates is revealed in over 200 news articles I found in online newspaper databases. Honing in on 1980, proponents and opponents communicated to the public that the proposed right 1) was extremely broad, 2) would mirror or exceed the rights protected by the federal constitution at that time, and 3) would protect informational privacy and decisional privacy. For example, the proposed right would implicate laws prohibiting consensual sexual relationships between unmarried adults and discriminating against homosexuals.
In two articles, gay-rights activists said that the right also would implicate laws on abortion. Stemberger acknowledges the two articles in his column but waves them away. He should not be so dismissive. (Another article quotes one of the activists as saying that the right would “give the people the opportunity to take back control over our own lives, our own bodies and minds.”)
In the ballot summary presented to voters, they were told that the amendment would “establish … a constitutional right of privacy.” In the public debate, the amendment was referred to in those general terms. The U.S. Supreme Court decided Roe v. Wade in 1973. Roe was divisive and much discussed in public. Everyone in 1980 would have known that Roe found the right to an abortion in a right to privacy implicit in the U.S. Constitution. As Prof. Fox persuasively argues, it is natural that abortion would not have been mentioned much because by 1980 the right to an abortion was part of the baseline understanding of the right of privacy. In other words, it was already baked into the cake, a point so uncontroversial it did not merit debate.
Moreover, GOP state Rep. Mike Beltran of Lithia has recently observed in Florida Politics that the 1980 amendment “was enacted less than a decade after Roe, while pro-lifers were actively attempting to reinstate protections for the unborn.” Voters would have known about the national pro-life movement. It is more than reasonable to conclude that Florida voters wanted to inscribe into their constitution a right of privacy that included the right to an abortion. Justice Stephen H. Grimes explained why in his separate opinion in In re T.W.: “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.”
U.S. Supreme Court Justice Clarence Thomas has written that when interpreting a constitutional provision, “the goal is to discern the most likely public understanding of a particular provision at the time it was adopted.” At the time it was adopted, voters would have understood the broadly worded amendment to protect the rights to informational privacy and decisional privacy, including the component right to an abortion. That understanding is what controls interpretation of section 23. To narrow the right to informational privacy only, as the state and pro-life activists want, would nullify what the people of the State of Florida intended when they ratified it in 1980.
Richardson is an appellate attorney in West Palm Beach. Views expressed are those of the author and not of the City & State Florida editorial staff.