The retirement of U.S. Supreme Court Justice Anthony Kennedy, who has been the swing vote keeping the landmark Roe v. Wade decision intact for the past 45 years, has made it more likely than ever that the right of women to control their own reproductive destinies may soon lose its protection under the U.S. Constitution.
If a newly tilted Supreme Court overturns Roe, it doesn’t make abortion illegal. It just allows each state to make its own determination on legality.
If that happens, some states, such as Mississippi, Louisiana and North Dakota, already have laws on the books to make abortion illegal, while others, such as California, Connecticut and Maryland, have laws to keep abortion as a women’s right.
Florida’s future is far more unsettled.
Floridians are more pro-choice when it comes to women’s reproductive rights. A Pew Center Research survey from 2014 found that 56 percent of Floridians supported abortion in all or most circumstances while only 39 percent were opposed.
But Florida’s ruling majority is decidedly antagonistic on legal abortion.
So in a theoretical post-Roe environment, there’s a good chance that Florida lawmakers will pass a bill to make abortion illegal. And if that bill is signed by a Republican governor, or able to overcome a veto by a Democratic governor, it will become law — and the target of lawsuits by women’s and civil rights groups.
That brings in the Florida Supreme Court, which would now replace the U.S. Supreme Court as the ultimate authority on abortion laws in the state.
The Florida Constitution has its own language on privacy rights.
“Every natural person has the right to be let alone and free from government intrusion into the person’s private life except as otherwise provided herein,” reads Section 23 under the state’s Article 1 Declaration of Rights.
A liberal Florida Supreme Court is bound to find that a law that forces unwanted pregnancies on Florida’s women is just the sort of “government intrusion” forbidden by the Florida Constitution.
But a conservative court would probably take a more narrow view, saying that the language in the Florida Constitution was never written to protect abortion, and therefore Section 23 of Article 1 doesn’t apply.
And this brings in another uniquely Florida issue.
Currently, the state’s high court is liberal. But a mandatory retirement law for judges in the state means that in January of next year, three of the seven justices on the Florida Supreme Court will be stepping down.
Justices Barbara Pariente, Peggy Quince and Fred Lewis are all liberal. And their replacements will be selected by the governor, a move that could change the bent of the court. With two conservative justices already on the court, the appointment of three conservative justices to replace Pariente, Quince and Lewis would make a 5-2 liberal court flip-flop to a 5-2 conservative court.
But what governor gets to do the appointing? This is yet another Florida issue.
Gov. Rick Scott is also term-limited out of office on the same day that the justices are leaving.
The Republicans anticipating this, inserted a referendum on the 2014 ballot that called for a new amendment in the state Constitution that would give Scott, the outgoing governor, the authority to fill the vacancies.
But the voters soundly rejected that amendment. Even so, Scott’s office says he intends to make the appointments when he steps down in January, which will certainly be contested if a Democrat is elected as the incoming governor.
Last year, the Florida League of Women Voters filed a lawsuit asking the Florida Supreme Court to step in and issue a ruling about whether the outgoing or incoming governor gets to fill the vacancies. But the court declined to intervene, saying the issue wasn’t ripe yet.
So this may end up a consequential mess with long-term implications. And the Florida Supreme Court may be too mired in its own political paralysis to offer clear guidance.
Which is why I say we preemptively cut through this political maneuvering and leave abortion up to the people in Florida who are most affected by it.
Only the women who are old enough to vote, but not too old to conceive, should get to weigh in on this. As long as we continue not to live in a theocracy, this is all about them, not the rest of us.
"Yes or no? Do you want the right for women in Florida to have access to abortion?"
I think deferring to their judgment would provide the kind of guidance that’s needed, and desperately lacking.
If the men feel left out, they can have their own question to make them feel relevant. Maybe offer them a chance to enshrine the right to erectile dysfunction medication in the Florida Constitution.
Frank Cerabino (email@example.com) is a columnist for the Palm Beach Post.