The Florida Supreme Court will rule eventually on House Bill 5, the state’s new 15-week abortion ban, so it might as well be sooner than later.
Attorney General Ashley Moody has asked the First District Court of Appeal to send it to the state’s highest court straightaway rather than take time to issue a decision that would be appealed either way.
That makes sense, but what’s dubious is Moody’s motive. She failed to persuade Tallahassee Circuit Judge John Cooper that there are compelling medical reasons for a near-total ban on abortions after 15 weeks. Now she’s arguing not just that Cooper was wrong, but that the facts shouldn’t matter.
Moody, who’s seeking a second term in November, wants the Supreme Court to repudiate its historic abortion rights ruling — which she calls “erroneous” — in the 1989 case known as In Re T. W. The court held that reproductive choice is protected by Florida’s constitutional right of privacy. More than 60% of the voters had ratified the privacy amendment in 1980.
If that precedent is wiped away, the Legislature would no longer need what the law calls a “compelling state interest” to restrict abortion rights or abolish them completely. Any pretext would do.
That danger is real.
Politics over precedent
In the courts, politics now prevails over precedents. Florida’s high court has scrapped at least five of its own past decisions since Gov. Ron DeSantis packed it with Federalist Society radicals. Among them: It repudiated a 1973 decision to compare death sentences for “proportionality,” its principal rationalization for upholding the state’s capital punishment law.
Abortion rights in Florida are tenuous in such hands. If it’s to go badly, voters should know it before the Nov. 8 election, when five of the seven justices will be on the ballot for merit retention votes.
Unlike their counterparts in the federal judiciary, Florida appellate judges, once appointed, must stand for retention every six years to stay in office. There are no opponents, so the only choice is yes or no. In 45 of those elections so far, no justice has come close to losing.
It’s unlikely that the Supreme Court would rule on HB 5 before the Nov. 8 election. But state justices would be faced promptly with deciding whether to let the law remain in force or restore Cooper’s order against its enforcement. Moody’s appeal triggered an automatic stay of Cooper’s order, so the law is in effect for now.
When fundamental rights are at stake, the presumption should be against any law infringing them. Cooper’s injunction should prevail.
How the Florida court rules on that issue, which would immediately affect thousands of women in Florida, could foretell its eventual decision on the constitutionality of HB 5.
‘To be let alone and free ... ’
Unlike the U.S. Constitution, Florida’s Constitution protects everyone’s right “to be let alone and free from governmental intrusion into the person’s private life,” subject to very few exceptions.
In the case In Re T.W., a unanimous court held that the state Constitution encompassed abortion rights for adult women. There was a partial dissent as to minors. The case was decided 16 years after Roe v. Wade.
“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,” said the majority opinion by Justice Leander Shaw Jr.
The ruling came with a promise.
“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,” Justice Stephen Grimes noted.
Grimes was one of three conservative justices who wanted an exception for women under 18. (Under a 2014 constitutional amendment, the law now requires parental consent unless a judge waives it.)
Moody’s contradiction
Moody directly contradicts Grimes’ promise in her motion to expedite the case. She argues that the U.S. Supreme Court’s overturning of Roe v. Wade, in the case of Dobbs v. Jackson Women’s Health Organization, upsets everything.
“Proper interpretation of Florida’s privacy clause has never been more important,” Moody wrote. “The U.S. Supreme Court in Dobbs held that ‘the authority to regulate abortion must be returned to the people and their elected representatives.’ The only barriers to doing so are the Florida Supreme Court’s erroneous abortion precedents.”
The Florida court has reaffirmed In Re T. W. several times, most recently in 2017 when it overturned a law imposing a 24-hour delay on abortion procedures. Three justices in that 4-2 majority have since retired. Dissenting Justices Charles Canady and Ricky Polston, who remain, questioned the applicability of In Re T.W., but did not suggest its repeal.
It’s possible for the court to overturn Cooper’s decision and uphold HB 5 without abandoning In Re T.W. Moody’s lawyers suggested that alternative to Cooper.
But it would be a stretch. Any limitation on constitutional rights is subject to a process called “strict scrutiny.” The court must conclude that the law serves a compelling state interest of protecting maternal health that could not be achieved in any other way. Cooper ruled as a factual matter that it doesn’t.
He noted that neither of the state’s expert witnesses had ever performed an abortion and one wasn’t even a medical doctor. The state, he ruled, “had failed to show that abortion is unsafe after 15 weeks” or that the law “would improve maternal health.”
On the contrary, he cited statistics that childbirth is 12 to 14 times more likely than an abortion to result in a woman’s death. Fifteen weeks, he added, is “two months before viability.” Florida’s previous law allowed abortions up to 24 weeks.
None of that would matter much should the Supreme Court rule that abortion is no longer a protected privacy right. That would affect more people than any other decision the court has made in more than a generation.
In seeking to overturn a 33-year-old precedent, Moody may assume she has more votes to gain than lose by destroying abortion rights. If so, she’s wrong.
____
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.
