Any law that invades the privacy and liberties of American citizens should come into court facing a heavy burden of proof. Does it serve a compelling public interest? Is it the most reasonable — that is, the least restrictive — approach?
That’s doubly true in Florida, whose state constitution contains an explicit right to privacy.
That’s why the Florida Supreme Court did the right thing last week to put a hold on the Legislature’s latest mean-spirited and colossally hypocritical attack on the reproductive freedom of Florida women.
To hear the sputtering hysterics of some legislators, you might think the court had overturned the 2015 law requiring a woman to see the doctor at least 24 hours before he or she can perform an abortion.
In fact, the court merely suspended that provision while it decides whether it even has the jurisdiction to do that. Assuming the answer is yes, the next question would be whether to leave it on the shelf during the long process of debating and appealing the constitutionality of the law itself.
That’s still at the trial stage in circuit court at Tallahassee, where Judge Charles Dodson properly granted a stay pending subsequent arguments on whether the law is, in fact, an unreasonable obstacle to a woman’s right to control her own body.
It’s hard to imagine how the stay hurts anyone, but the state appealed and persuaded the First District of Appeal to put the waiting period back into force. That’s what led to last week’s 5-2 Supreme Court decision.
So far, 11 judges have had their say on that narrow question of timing. Only six of them did the right thing.
The five who didn’t are Supreme Court Justices Ricky Polston and Charles Canady, and a First DCA panel composed of that court’s judges Brad Thomas and Susan L. Kelsey, along with William F. Stone, an elected circuit judge from Okaloosa County sitting by special appointment.
It’s another of those reminders that who you elect governor really matters. It was the stridently anti-choice Jeb Bush who launched the appellate careers of Thomas, Polston and Canady. It was Charlie Crist, a Republican then, who promoted Polston and Canady to the Supreme Court. Kelsey is Rick Scott’s responsibility.
Polston and Canady are frequent, virtually predictable dissenters to Supreme Court decisions favoring citizens against the government, as in this case, or workers and consumers against corporations.
In one particularly cold-blooded moment, they objected to the court’s proportionality reviews of death sentences because the U.S. Supreme Court doesn’t require them. On Thursday they voted to preserve arbitrary low limits on worker’s compensation attorneys’ fees that the majority held in violation of an injured employee’s access to the courts.
To Crist’s credit, he balanced those appointments by later naming Justices Jorge Labarga and James E. C. Perry, who joined Justices Barbara Pariente, Peggy Quince and R. Fred Lewis in the order temporarily suspending the waiting period.
But Perry faces mandatory retirement next year and Pariente, Quince and Lewis will be out in January 2019. A nominating commission composed entirely of Scott’s people will winnow their potential successors, and that could be the death knell for reproductive rights in Florida. It’s a close call whether the current case, brought by Gainesville Woman Care LLC and others, will be completed by then.
The core issue is whether the law imposes an unfair burden on a woman seeking an abortion by forcing her to first see the doctor who will perform it and then wait at least a day to have it done.
It is a significant burden. Not all women can afford to take time off from work and travel what might be a considerable distance on two separate occasions. The brief filed by Julia Kaye, the ACLU staff attorney in charge of the case, also points out that this increases “the risk that her family members, employers or others will discover that she intends to end the pregnancy.”
It could, she said, “prevent some women from obtaining an abortion altogether.”
And that’s the transparent purpose. As State Sen. Anitere Flores, R-Miami, a cosponsor, put it last year:
“One day to reflect upon the risks of abortion, one day to view an image of the unborn child’s ultrasound image, and one day to consult with friends, family and faith are minimal considering the effects that will remain for a lifetime beyond that irreversible decision.”
None of that – NONE OF IT – is the government’s business.
And that gets to what I said about hypocrisy.
No other medical procedures are subject to any waiting period in Florida, and there are a lot of them that are just as irreversible and, what’s more, a lot more dangerous.
According to statistics posted by the National Library of Medicine at the National Institutes of Health, the mortality rate for legal induced abortions is a negligible .6 per 100,000 procedures. That’s less than one death per 100,000, which compares to 8.8 women dying for every 100,000 live births.
The death rates following cosmetic surgery are astronomically higher. One study put the risk from liposuction at 19.1 per 100,000 procedures. Another calculated the risk to range from one in 600 to one in 3,000 for tummy tucks.
The death rate from vasectomies is negligible. But they’re practically irreversible too, with lifetime consequences.
So doesn’t Florida require pudgy women and reluctant fathers to wait 24 hours after a consultation before going ahead with their tummy tucks, liposuctions and vasectomies?
To hear the legislators, it’s because no one can get those on a same-day basis. That strikes me at fatuous nonsense. The real reason is that it’s because they’re more concerned with other people’s fetuses than with other people’s lives.
Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives in suburban Asheville, North Carolina. Column courtesy of Context Florida.