The biggest shock was that the U.S. Supreme Court leaked a draft opinion.
The opinion itself, and the repeal of Roe v. Wade, was foretold by the Republican Party’s blatant campaign to pack the court with justices chosen for their hostility to reproductive freedom and their transparent disrespect for precedents they dislike. That’s one promise Donald Trump kept.
Political aftershocks will reverberate across Florida, where the state Supreme Court has likewise been weaponized into an instrument of right-wing policy. Its historic commitment to abortion rights is also in jeopardy.
If Justice Samuel Alito’s draft prevails, abortion rights will depend entirely on the whims of misogynistic state legislatures — some of which have already effectively repealed them, as in Texas and Oklahoma, or have sharply limited them, as in Florida.
Florida’s new ban on abortions after 15 weeks may be only the beginning.
For all the years that the anti-abortion movement was gathering strength, women in Florida have had the assurance that their rights were safeguarded by the state constitution’s privacy provision. Ratified by voters in 1980, it says: “Every natural person has the right to be let alone and free from governmental intrusion except as otherwise provided herein.”
Nine years later, the Florida Supreme Court held unanimously that this guarantees reproductive freedom. It split 4-3, however, on applying that to minors, which was the main issue in the case of In re T.W.
The loss of a right
A subsequent constitutional amendment required parental notification, and two years ago, the Legislature and Gov. Ron DeSantis expanded it to require parental consent. But the rights of adult women seemed secure — until now.
“Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy,” Justice Leander Shaw wrote for the majority in In re T.W. “We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime, except perhaps the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment.”
Even the dissenters agreed to protecting adult women. As Justice Stephen Grimes explained: “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.”
But Grimes and his colleagues could not foresee how political — and conservative — the Florida Supreme Court would become after a series of DeSantis appointments.
Precedent used to be a particularly cherished value at the U.S. Supreme Court, which rarely repudiated any. Even Trump’s nominees paid lip service to it, though obviously with fingers crossed behind their backs.
Polls show nearly 60% of Americans favor abortion rights in at least some circumstances and seven in 10 oppose the repeal of Roe.
Political pandering
Republicans have long pandered to a strident minority that opposes abortion in all circumstances. They started this battle, but the rest of us must win it. With a pivotal race for governor and important midterm elections approaching, Florida needs a lot of single-issue voters.
The Republicans are reported to be plotting ways to ban abortion nationwide if they secure a veto-proof majority in Congress this fall, and even more if they retake the White House in 2024.
Alito’s leaked draft opinion claims it would not be a precedent for overturning other constitutional rights such as contraception (the 1965 decision that was a precursor to Roe) and same-sex marriage. That assurance is unpersuasive.
Elections matter. Florida’s judiciary has been corrupted by governors who treat the courts as an appendage of the Republican Party. Only one moderate justice, Jorge Labarga, remains after three others had to retire after turning 70.
The court has drifted so far to the extreme right that Justice Alan Lawson, a traditional conservative appointed by former Gov. Rick Scott, won’t get a two-year term as chief justice. He announced his retirement last week at age 60, giving DeSantis yet another opportunity to pack the court with a Federalist Society ideologue.
It would have been Lawson’s turn had the court followed its custom of rotating by seniority. The post went to Justice Carlos Muñiz, the most notably political of the current justices and the only one who had not been a judge before DeSantis chose him two years ago.
The Florida court is primed to unravel the abortion rights it assured to women in 1980. A similar calculation undoubtedly went into DeSantis’ demand for a gerrymandered congressional map that flagrantly violates the Fair Districts amendments. How the Supreme Court rules on that will foretell how it disposes of any outright abortion ban that may be brewing in the DeSantis’ campaign.
The 15-week law the Legislature enacted, which DeSantis signed in a church in Kissimmee, allows no exceptions for rape or incest. Inexcusably, the Senate’s minority leader, Lauren Book, promised Republicans she would not ask for a roll call on an amendment to add at least that measure of decency. Perhaps an exception would have passed had the Republican majority not been allowed to evade accountability with an unrecorded voice vote.
Tougher tests lie ahead, with Roe v. Wade on death watch. If Democrats fold again, they know that a lot more people in Florida will be watching.
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The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.
