A monumental abortion question for FL Supreme Court: How did voters in 1980 define ‘privacy’?

This is the first in a two-article series.

Jerri Blair was running a small legal practice in Leesburg in 1989 when she got a call from the court clerk. The state had passed a law requiring minors to obtain parental consent to undergo an abortion unless they could persuade a judge they were mature enough to decide on their own.

A little more than three years after she joined the Florida Bar, they had a pro bono client for her, Blair recalled: a 15-year-old girl reluctant to burden her ailing parents with the news she was pregnant. Thus began the legal fight that would result in a Florida Supreme Court ruling that the state Constitution’s Privacy Clause, approved by the voters nine years earlier, protected access to abortion, even for minors.

Now a vastly different state Supreme Court — five of its seven members appointed by “pro-life” Gov. Ron DeSantis — appears on the verge of overruling that 34-year-old precedent. The court has scheduled oral arguments in the matter for Sept. 8. More than 100 briefs from across the country have been filed at the high court in Tallahassee, reflecting the profound implication for abortion and privacy rights.

“It would be worse than Dobbs” if the justices do that, Blair said during an interview in her home in Leesburg, in Central Florida. (The Phoenix also interviewed Blair by telephone; she remains a member in good standing of the Florida Bar but has closed her practice.)

Blair was referring to the U.S. Supreme Court ruling last year overturning Roe v. Wade, the 1973 U.S. Supreme Court ruling finding an implied privacy right to abortion under the U.S. Constitution.

That’s because it would violate the trust Floridians place in their courts not to lightly retreat from settled law involving what Blair sees as a clear constitutional mandate from the voters, unlike the implied right that Roe recognized federally.

“It [the judiciary] was the branch of government I’ve always felt it was the most faithful to its duty and its purpose in life. In the ’60s, without federal judges we would have never gotten anywhere with civil rights. And almost anything that has been an expansion of the beauty of freedom and liberty, the concept of liberty, has come from courts,” she said.

Ken Connor, an attorney who in 1989 was president of Florida Right to Life and now lives in South Carolina, ardently hopes the justices abandon the interpretation of the privacy clause the court adopted 34 years ago.

“Sadly, in my view, the Florida Supreme Court usurped its prerogative and became a super legislature — effectively rewrote the privacy right provision of the Constitution which had been enacted by the voters,” Connor told the Phoenix. By that, Conner meant that the court took for itself the legislative role of setting policy for the state.

In re T.W.

Court records from more than 30 years ago identify Blair’s client as “T.W.” Her identity remains confidential, according to Blair, who said she still hears from the former client. The Florida Phoenix hoped to talk with T.W. but Blair declined to facilitate an interview, still shielding her privacy, she said.

T.W. and her boyfriend had used birth control, but it had failed, according to Blair.

“I got the case on one day and went to court the next day with this girl who was 15 — and she’s such a lovely girl. And I followed her for her whole life, and she has a lovely life,” Blair said during an interview in her home.

“She had a very good reason for not wanting to go to her parents. In fact, it’s in the opinion so I can say it — she didn’t want to go to her parents because her mother had just said to her, ‘If you get pregnant it will kill me,’ because her mother had gotten pregnant early and her mother was dying of cancer and her father had just had a heart attack.

“And she was taking care of her brother because her parents were both so incapacitated. So, she was under a lot of stress, and they decided they weren’t old enough [to have a kid]. She didn’t think she could give up a baby for adoption. So, I thought that shows a lot of maturity.”

Blair communicated with T.W. through a school counselor because the parents couldn’t know.

T.W. ultimately did obtain her abortion, the state Supreme Court having struck down the parental-consent statute, Blair said, although on one occasion Blair reluctantly had to call the clinic to stop the procedure following an adverse court ruling.

The trial judge, Jerry Lockett, who died in 2013, appointed an attorney to represent the fetus — a move the Florida Supreme Court would quash, as the fetus was not legally a person with an interest in the outcome. The judge ultimately ruled against T.W., prompting appeals to an intermediate appellate court and then the state high court. “We argued all of that in 17 days, and then to the U.S. Supreme Court,” Blair said.

The case landed before now-retired Justice Anthony Kennedy, who agreed with Blair the matter should be decided under Florida law, Blair recalled.

The case reverberated nationally; as recently as January, the South Carolina Supreme Court cited In re T.W. in upholding abortion access in that state, although that court’s composition has changed and now it has reversed itself. At least nine states have constitutional provisions appearing to protect abortion rights.

Privacy

Modern notions of a right to privacy began to emerge during the Nineteenth Century, often linked to an article future Justice Louis Brandeis co-wrote in 1890 for the Harvard Law Review proposing a right “to be left alone.” In his case, from the intrusions of his day’s scandal sheets into personal privacy.

By 1965, Justice William O. Douglas had identified a general right to privacy within the “penumbras” — spaces “of partial illumination (as in an eclipse) between the perfect shadow on all sides and the full light” — under the First, Third, Fourth, and Ninth amendments to the U.S. Constitution.

That came in Griswold v. Connecticut, establishing a privacy right for married people to use contraception, the edifice that would support rights to mixed-race and same-sex marriages, same-sex relationships in general, and, in 1973, Roe v. Wade, abortion depending on the stage of a pregnancy.

The U.S. Supreme Court (like Florida’s, now larded with conservative appointees) overruled Roe in Dobbs v. Jackson Women’s Health Organization, freeing Florida’s justices to follow suit. Gov. DeSantis has appointed five of the seven sitting justices and Justice Charles Canady, appointed by former Gov. Charlie Crist, was anti-abortion during his political career in the Legislature and Congress.

Enshrining a privacy right in the Florida Constitution came up during the Constitution Revision Commission’s late 1970s deliberations, but the voters shot it down along with the other proposals the commission placed on the ballot in 1978. The idea didn’t die, though, and two years later the Florida Legislature again placed the idea on the ballot. It won handily with 60% of the vote.

“Every natural person has the right to be let alone and free from governmental intrusion into his 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,” the amendment, enshrined as Article 1 Section 23 of the state’s governing charter, proclaims.

Abortion limits

What that means is newly relevant because last year the Legislature passed, and DeSantis signed, a measure banning abortions after 15 weeks’ pregnancy with few exceptions; under Roe, states couldn’t ban abortion before fetal viability, now about 23 weeks. Earlier this year, DeSantis signed a new law banning the procedure after six weeks (before many people realize they are pregnant), contingent on the court upholding the 15-week ban.

Plaintiffs including Planned Parenthood Florida chapters have sued to block enforcement and prevailed at the trial level. The justices in Tallahassee allowed the law to take effect pending the outcome of this appeal, signaling skepticism about the legal challenge.

The question is whether the Privacy Clause ensures a broad right to make decisions about one’s private life or was more narrowly drawn.

Note the two sentences in the Privacy Clause: The first would seem to promise an expansive privacy right; the second, by reference to public records, might imply that its framers — not only the Legislature that placed the initiative on the ballot but also the voters who passed it — wanted to protect informational privacy only, pertaining to their private records and right not to be spied on.

That’s what the state argues in a brief filed in the case now before the court. The case has attracted a large number of amicus, or friend-of-the-court, briefs from religious groups both opposing and favoring access to abortion; medical and social-justice groups; the Florida Legislature; and 19 other states that already have restricted abortion access.

Privacy, the state of Florida’s brief argues, means “informational solitude, not decisional autonomy. That, after all, is how most ordinary people understand ‘privacy,’ not in the specialized sense of the word — favored by the cognoscenti steeped in Roe and its progeny — that includes all manner of personal decisions. It was, in fact, not lost on Section 23’s framers that activists might misappropriate those words to constitutionalize controversial issues like intimate relations and drug use.”

“But even if Section 23 could be stretched to encompass some aspects of decisional autonomy, it would not include — in petitioners’ breathtakingly capacious phraseology — freedom from ‘any unwelcome interference or impediment.’ It certainly would not provide a right to cause harm, including to unborn life,” the brief continues.

‘Foreign to the ordinary voters’

The state’s brief adds: “Ordinary speakers in the years preceding the amendment rarely used its language to describe abortion. Section 23’s chief Senate sponsor disclaimed that it had anything to do with abortion. Many legislators both voted for Section 23 and sponsored a ‘right-to-life’ amendment to the federal constitution. Roe’s lawyerly vision of privacy would have been foreign to the ordinary voters in 1980 who ratified Section 23.” 

Orlando anti-abortion attorney John Stemberger made a similar point writing in the Tallahassee Democrat in June.

Referring to records of the Privacy Clause debate, he writes: “What does not appear in any of those archived records is the word ‘abortion.’ Not a single time. Also missing are the words ‘personal autonomy,’ ‘termination of pregnancy,’ ‘substantive due process,’ ‘Roe vs. Wade,’ or any hint of a right to abortion.”

Ken Connor, the right-to-life activist, agrees with that take.

“I felt very strongly at that time … that Article 1 Section 23 really was intended to protect people from informational disclosure privacy” in light of Richard Nixon’s Watergate crimes, he said during a telephone interview.

Connor contributed an amicus brief in the T.W. case all those years ago on behalf of a group of state legislators — including now-Justice Canady. His wife, Jennifer Canady, sponsored the six-week abortion ban the Legislature passed this year. He has given no indication he plans to recuse to avoid a conflict of interest.

On the other hand, Carlos Muñiz, then an attorney in GrayRobinson’s Tallahassee office, now Florida’s chief justice, acknowledged the amendment’s broad sweep in the Fall 2004 edition of The Journal of the James Madison Institute (available in the State Library of Florida facility in the Capitol).

He was arguing in favor of a then-pending proposed constitutional amendment to allow a parental notification law for minors seeking abortions (required by the T.W. ruling; it passed and now Florida again has a parental notification law). However, the voters declined the Legislature’s invitation to overrule In re T.W. in 2012; more than 55% of the voters said no.

“At that time [when the people approved the Privacy Clause], seven years had passed since the U.S. Supreme Court established the abortion right in Roe v. Wade. Already there was widespread acknowledgement of the vulnerability of any right that lacked explicit support in constitutional text. In this context, one purpose of the privacy amendment clearly was to give the abortion right a textual foundation in our state constitution,” Muñiz wrote.

‘Originalist case’

Adam Richardson, an appellate attorney in West Palm Beach, offers “The Originalist Case for Why the Florida Constitution’s Right of Privacy Protects the Right to an Abortion” in a law review article.

“Originalism” refers to the doctrine, often linked to the late U.S. Supreme Court Justice Antonin Scalia, of judging laws or constitutional provisions according to what their authors, including the voters, intended at the time. As Richardson points out, the Florida Supreme Court put it this way three years ago when requiring felons seeking to recover their voting rights under 2018’s Amendment 4 to first pay any court-imposed fines, fees, and restitution: “We ask how a reasonable member of the public would have understood the text at the time of its enactment.”

Richardson writes: “There is no hint in the text of Section 23, as it would have been understood by voters in 1980, that it is limited to government snooping and information gathering. While the right does protect against those things, it is logical to conclude that it must also include protection against governmental intrusion into a person’s decisional privacy, like the decision to have an abortion.”

It doesn’t matter that the clause says nothing about abortion. “The breadth of the language is clear evidence that there was no intent to restrict the right of privacy in the way the state and prolife activists argue,” Richardson insists.

After the U.S. Supreme Court released Roe on Jan. 22, 1973, Florida newspapers widely emphasized that the justices had grounded the ruling in the right to privacy, Richardson writes. That inflamed an antiabortion movement such that abortion became an issue in the 1980 election between Jimmy Carter and Ronald Reagan. The issue would have been conspicuous to Floridians voting that same year to enact the Privacy Clause, Richardson continues.

“Both sides understood this,” he writes, citing news reports of comments by anti-abortion and pro-choice activists including prolife University of California law professor John Noonan, who wrote at the time in The Florida Catholic that “‘right to privacy’ was a ‘code word’ to mask the immorality of abortion.”

‘Protected zones’

Richardson cites Jon Moyle, chairman of the CRC committee that drafted the 1978 privacy proposal, expressly referring to “protected zones of privacy, specifically a person’s decision about marriage and procreation,” in debate.

When the Legislature took up privacy rights two years later, members of the House and Senate played down the implications for abortion and even gay rights but acknowledged the measure would do more than merely protect private information. So did the press coverage, Richardson writes.

And to the extent abortion did come up, it was to complain that the proposal would be redundant in light of Roe. Numerous politicians and newspaper editorials complained that the measure was so broad that it was impossible to gauge its implications, he notes.

In fact, the case’s outcome wasn’t even close; the court in its T.W. ruling was unanimous in finding a privacy right to abortion; the only quibbles involved partial dissents that would have in some way sanctioned the parental-notification language. That included partial concurrence by then-Justice Ben Overton, who’d sat on the Constitution Revision Commission and was well familiar with the debate there.

“If the current Supreme Court decides to reconsider In re T.W., it should acknowledge that the justices in 1989 were in a better position to know Section 23’s original public meaning than the justices now,” Richardson writes.

For her part, Blair cited Jon Mills, a future House speaker who sponsored the Privacy Clause in the House back in 1980, in support of a broad reading. She’d attached an article he wrote for the Center for Governmental Responsibility at the University of Florida Levin College of Law to one of her T.W. briefs.

“The proposed Florida privacy amendment would grant Florida citizens the same right vis-a-vis state government as they currently enjoy with respect to the national government under the federal constitution,” Mills wrote.

Assistant A.G.’s view

Meanwhile, George Waas, who argued on behalf of then-Attorney General Bob Butterworth defending the parental-notification law, personally believed the privacy right was broad but that the parental-consent statute fit comfortably within it.

“It’s a free-standing provision that is independent of any other provisions and any provision of the federal constitution. It stands on its own accord,” Waas said in a phone interview.

That said, “It wasn’t lost on us that we were swimming upstream against the tide of the language of the Florida amendment” regarding notification, he recalled.

The court made sure the parties briefed the abortion angle — this after Blair argued that issue in her first brief but the other side neglected it. The A.G.’s office’s research included a review of Brandeis’ 1890 law review article, Waas said.

“We relied on that” but also argued that “not every decision that a minor makes can be made in an unfettered manner. There has to be some level of awareness of the implication of the decision,” Waas said.

“It was a pretty vigorous argument – I was up there for 30, 35 minutes on this case. Usually, they give you 20 to 30. I earned my perspiration points,” he said.

“I mean, that was one of the most significant cases that I handled in my 32 years in state government. It was, from an emotional standpoint, the most important case I handled.”

Whatever his personal opinion, Waas is realistic about what the court may do.

“You know the old saying: What does the Constitution mean? The federal Constitution means whatever five justices say it means. In Florida, it’s whatever four justices say it means. That’s a jaundiced view, but it happens to be true,” he said.

Threat to other rights?

And what might the court do? The outcome could affect more than abortion rights, since the right to interracial and gay marriage also developed out of Griswold and would be implicated by the court’s view of the Privacy Clause.

Bob Jarvis, professor of constitutional law at Nova Southeastern Shepard Broad College of Law, can read the writing on the wall.

“The court obviously is going to overrule T.W.,” he told the Phoenix by email. Jarvis has argued in the past that that’s what DeSantis selected his justices to do. He also has predicted a ruling before the GOP Iowa caucuses and New Hampshire primary in January, in which DeSantis is a candidate.

“However, I think the opinion will be a narrow one, dealing just with abortion. Thus, at least at this point, I do not see it endangering other medical treatments or procedures, Jarvis added.

“Of course, the court could issue a broader opinion but given the posture of the case and the arguments of counsel, I think it’s just going to be an abortion decision. In future cases, however, I do expect hard-right attorneys and their clients to continue their push for a rollback of medical autonomy rights (the hard right never has gotten over the Terri Schiavo case.)”

Would such a radical see-saw damage the court’s legitimacy?

“Not much,” Jarvis said.

“In the eyes of most Republicans, the court is entirely legitimate (especially on this issue, where it has cover from the U.S. Supreme Court’s Dobbs decision), while in the eyes of most Democrats, the court is completely illegitimate (due to its recent decisions on such issues as the death penalty and ex-felon voting rights). The blocking of the abortion amendment would just add to each side’s narrative (although I think it would help Democrats much more than it would help Republicans).”

That would seem likely if the court attempts to walk back the human-rights guarantee its predecessor acknowledged all those years ago as arising from the people’s will, and more so if it tries to trim additional privacy rights in the future.

Realism

Waas, the former state litigator, is realistic about the prospects.

“What is well-settled law today might be un-well-settled law tomorrow, and you know we’re seeing that. You’re dealing with the most sensitive, the most emotionally charged issues – abortion, civil rights, all of these. They stir up the pot.

“There was a lot of emotion in T.W.”

Still, Jerri Blair worries about the court changing course too radically.

“If you live in a society of human beings there are parameters that we use to help make things work. The law is the parameters. … We have statutes and rules and then we have the constitutions that give you the overview,” Blair said, about what’s legal to do.

“How can you know if there’s no value given to precedent? Precedent is the only reason it works,” she said.

Next: Florida’s schools keep students in the dark about their abortion rights, but they’re starting to learn.