The State Constitution of Florida--Yes, Florida--Protects the Right to Abortion

[In It to Win It]

One of my friends who is very passionate about the abortion issue sent me this today after listening to me rant about "originalism" so I thought I'd share. I was making the point that you can't get more "originalist" than the direct will of the voters in regard to this 2012 ballot initiative... and this article in Slate makes the originalist point that I was making, which I thought was interesting.

Slate

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In 2012, the Legislature placed another proposed amendment, Amendment 6, on the ballot that would have added a section to Article I of the state constitution that spells out Florida’s privacy rights. The relevant part of Amendment 6 stated: “This constitution may not be interpreted to create broader rights to an abortion than those contained in the United States Constitution.” The amendment would have overruled the Florida Supreme Court’s decisions protecting abortion

The language of the proposal was also forward-looking. It clearly anticipated that, one day, the U.S. Supreme Court could overrule Roe, which would mean no more state constitutional right to an abortion.

Ultimately, the electorate rejected Amendment 6, with 55 percent of the voters voting against it. This rejection is critical to understanding the post-Dobbs landscape in Florida.

When voters rejected Amendment 6 in 2012, the people of Florida adopted or incorporated the Florida Supreme Court’s prior judicial constructions of the privacy right under the established rule of construction. Put another way: the 1989 and 2003 decisions upholding the right to abortion as embedded in the right to privacy are reaffirmed. Voters could not have been clearer: Our state constitution’s explicit, freestanding, and broadly worded privacy right protects the right to an abortion. And the protection of the right is in no way affected by the federal constitution or how it is interpreted.

What’s more, the people fixed the dimensions of the state right to an abortion to those that existed in 2012. Under the “fixed meaning” canon, Justice Antonin Scalia and Bryan A. Garner wrote in their book Reading Law, “Words must be given the meaning they had when the text was adopted.” Approval of Amendment 6 would have rewritten the privacy right as it relates to abortion. In a very real sense, the rejection of the amendment was a readoption of the privacy right—a readoption that incorporated the Florida Supreme Court’s abortion precedents up until that point in time.

The issue, then, is not whether the Florida Supreme Court can recede from its prior abortion precedents under the now-weakened doctrine of stare decisis. By rejecting Amendment 6 in 2012, Floridians codified that precedent into the constitution’s privacy right. To return to Dobbs, the people decided that “the right [to abortion] is somehow implicit in the constitutional text.” Should the Florida Supreme Court purport to overrule its precedent to hold that the privacy right doesn’t include the right to an abortion, it would be doing nothing less than nullifying the will of the people of the state of Florida.