Court’s abortion cases mean a lot in Florida | Cotterell
If, as expected, the U.S. Supreme Court abandons the ruling it made nearly a half-century ago legalizing abortion, it will put Florida in an unusual position.
The justices heard arguments Wednesday on a Mississippi law that forbids most abortions after 15 weeks gestation. There’s a Texas law farther back in the legal pipeline which, among other things, would move the decision point back to about six weeks.
With ex-President Trump’s three conservative appointees, the nation’s highest court has a 6-3 majority considered hostile to the 1973 Roe v. Wade decision that made early-term abortion a decision for women and their doctors. The Mississippi law is a direct challenge to that precedent.
When Justices Brett Kavanaugh and Amy Coney Barrett were confirmed by the Senate, you could hear the clock ticking on Roe. The countdown quickened when the high court agreed to hear the Mississippi case and Texas followed with its more draconian law.
Whether the court dumps Roe, compromises on some restrictions or — miraculously — upholds the precedent, the case has nationwide legal and political implications for the remainder of President Biden’s administration, and beyond.
If a decision comes in June, as the court often holds the big ones for the tail end of each term, that injects it right into primary campaigns. Every governor, senator and House member will have to take a position on an issue sure to offend a sizable portion of the voters.
Most officeholders and major candidates are already on record, including Florida Gov. Ron DeSantis and Republican Sen. Marco Rubio, as well as their Democratic challengers next year.
So suddenly the issue that neither side will ever concede would become a central topic in every campaign.
If the court recedes from what’s been the law for 48 years, it won’t outlaw the procedure, but toss it to the states. Some large, liberal states have “choice protection” acts cementing the status quo, if the court backs away from Roe — while a dozen states have passed “trigger” laws forbidding abortion, set to take effect the instant the Supreme Court gives the green light.
Not only are the judges and lawmakers different, the electorate has changed a lot since abortion was illegal. Generations of voters have come to adulthood, and parenthood, accepting the status quo.
However, the court tries to remain above politics, the Mississippi and Texas cases probably raise the most important political topic since — well, since 1973, when a much different Supreme Court made abortion legal nationwide. And Florida, naturally, adds its own little top spin.
The state used to have a tourism slogan, “The rules are different here.” This time, that’s much more than a sales pitch.
Our state constitution has a “privacy amendment” stating, “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.”
The state justices twice cited it in striking down laws requiring parental notice when minors seek abortion. It’s the sort of “Don’t Tread on Me” independence conservatives are supposed to revel in.
There’s a little political side story regarding abortion and privacy in Florida.
In 1989, the state court ruled that “every natural person” meant minors, too. The ruling was unsigned but the late Justice Leander Shaw had it re-issued with his name on it. His courage prompted a campaign to deny Shaw retention on the court (Florida appellate judges don’t have opponents, but we vote periodically whether to keep them in office) but Shaw and his brethren survived at the polls.
The state has added some restrictions since then and bills directly defying the Roe ruling get introduced in most legislative sessions. We have a more conservative state Supreme Court now — five of the seven justices chosen by DeSantis — and if abortion is sent back to the states to decide, our judges will have to apply that privacy provision in our state Constitution.
In fighting the Biden administration over COVID policy and mask mandates, DeSantis and Republican legislators have been wailing about “Freedom” like Richie Havens at Woodstock. (Readers under 50 are excused to run a quick YouTube search for that one.)
Well, which is it? If a woman seeking abortion is a “natural person,” will this freedom-loving state government seek to regulate her medical privacy? Or is her unborn child also a natural person, whom the state may require her to carry?
Bill Cotterell is a retired Tallahassee Democrat Capitol reporter who writes a twice-weekly column. He can be reached at bcotterell@tallahassee.com
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