I write in response to Stetson University law professor Louis Virelli’s assertion that the Florida Supreme Court must uphold its abortion precedent, even if Roe is overturned.
In an op-ed for the Tampa Bay Times, Virelli claims that “the Florida constitution specifically protects the right to privacy, which the Florida Supreme Court interpreted in 1989 to include the right to an abortion.” However, the 1989 opinion relied more heavily upon Roe, which it cites 28 times, than on the supposedly applicable provision of the Florida Constitution, which it cites only 10 times.
In short, the Florida Supreme Court held that because Roe allowed abortion, the Florida Constitution must do so as well. Florida’s abortion caselaw was born with Roe and must die with it as well. Contrary to Virelli, there is no “right” to an abortion. The Government is not obligated to fund it. At most, abortion is allowed, for the time being.
The logic of both Roe and the Florida Supreme Court are faulty. Neither the United States nor the Florida Constitution explicitly protect abortion rights. Roe relies instead upon an alchemy of different constitutional provisions, all taken out of their historical context, with their meaning and purpose distorted, to fashion this supposed “right.” A right to privacy protects you against observation or disclosure, it does not license you to do whatever you want.
Instead, both the United States and Florida constitutions place abortion, like most subjects of regulation, squarely within state sovereignty, to be decided by the people’s elected representatives according to normal processes of bicameralism and presentment. Abortion advocates claim their positions enjoy wide popular support, but this is belied by their inability to achieve electoral success for a constitutional amendment or succeed at traditional lawmaking.
Virelli next claims that because it is easier to amend the Florida Constitution, faulty legal precedents should stand.
I have consistently advocated for protecting our Florida Constitution by creating additional checks and balances in the amendment process. However, amendment remains fairly easy for the voters, and even easier for unelected activist justices. This does not protect faulty precedent, instead it places the onus on the proponent of a purported constitutional right: enact a law, or pass a constitutional amendment, but do not distort the text of our Constitution or dilute it by concocting new meaning.
Virelli next claims that because a measure to amend the Florida Constitution to clarify the law on abortion failed, that the “Florida Supreme Court must not overrule its abortion precedent.”
However, the Constitution is amended through successful amendments, not failed ones. Proponents of an Amendment must follow a strict set of procedures and then obtain 60% of the vote on election day. By contrast, an Amendment may be defeated with less than 41% of the vote. This 41% may be able to block an Amendment, but they cannot create new law.
In fact, the only time the Florida Constitution was amended in relation to abortion was in 2004 to overrule the 1989 precedent instead authorize the Legislature “to require by general law for notification to a parent or guardian of a minor before the termination of the minor’s pregnancy.” The Amendment also rekeyed any Florida privacy right to “the United States Constitution as interpreted by the United States Supreme Court,” at least for minors.
Further, the 1980 Amendment to the Florida Constitution was enacted less than a decade after Roe, while pro-lifers were actively attempting to reinstate protections for the unborn, and less than a decade before they succeeded in Casey, and yet it contains no mention of abortion whatsoever. Thus, the history of the Florida Constitution weakens the pro-abortion caselaw, it does not strengthen it.
Virelli closes by castigating judicial activism. However, it is precisely this type of activism that created our faulty abortion caselaw in the first instance.
Virelli claims this activism should be insulated both from legislative change and judicial reexamination through a doctrine known as stare decisis. However, he does not explain why old decisions reached through faulty logic should be so revered. Plessy v. Ferguson (1896) was overruled by Brown v. Board of Education (1954) by following the clear text of the antecedent 14th Amendment (1868), not an intervening constitutional amendment, as Virelli appears to think necessary. So too, should In re TW (1989) be overruled by following the clear text of the Florida Constitution (1968), and amendments thereto (1980), without requiring any intervening constitutional amendment.
As the late Justice Robert Jackson said, “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.”
Mike Beltran is a Republican member of the Florida House representing House District 57, which includes part of Hillsborough County.
June 4, 2022 at 1:41 pm
Sorry Mike, but you ain’t got no boom if you ain’t got a womb. Some rights are just too darn important to leave up to the states-they simply must be protected federally. Civil rights, LGBTQ rights, and a woman’s right to control her own health and body falls squarely into that camp.
Ain't BLVRn' it
June 4, 2022 at 8:23 pm
Nothin’ doing you womb-bat; your logic don’t go. Babies don’t spring suddenly from a woman’s mere will–she ain’t that big a god, yet, try as she might. Science will tell you it takes two to tango. Believe it. So why in the baby dance does only one party have the light on her? Because it is her body? Nope. Ain’t her body that lies bleeding and dead in the garbage can. She dances away, ready for another tune to lead her on. Oh, science wants you to believe it’s “just a mass of cells.” Is that all you were? When did you become more than that? When you mother decided it? What if you were two and she decided, as some do, that no matter what you were you just weren’t worth the trouble? Did she have a privacy right to indulge her insanity? Not when you were two you years old? Then why when you were two months old? Is it because a two month old cannot cry–or perhaps just cannot be heard.
June 4, 2022 at 1:55 pm
63 million abortions later since Roe v Wade.
Say a prayer. More ridiculous Misbeliever misgivings. You are a fool. Schumer put an abortion bill til birth, I repeat up to 9th month. For a vote in Senate. 49 Dums voted yeah. Thank almighty for Manchin voting no with GOP, Defeated!
Florida’s 15 weeks is reasonable, most people agree besides extremists like misbeliever.
63 million later, sad.
June 4, 2022 at 2:27 pm
I’ve read several comments by ScienceBLVR, and he or she is far from an extremist, Tom. ScienceBLVR’s writings reflect a rational, independent thinker (in my opinion), something that may be foreign to you.
And we know you don’t like foreigners, Tom.
June 4, 2022 at 2:07 pm
“I have consistently advocated for protecting our Florida Constitution by creating additional checks and balances in the amendment process.”
So says Beltran, reminding all Floridians that he is one of the jerks in Tallahassee who have made it harder for Florida citizens to put initiatives on ballots for voters to decide upon for themselves. Reminding us too that he and his cohorts have ignored or undermined the will of the people when some initiatives the people passed didn’t sit well with the good old boys in power, such as restoration of voting rights to felons who have served their time.
Thanks for that reminder, Beltran, it makes it so easy for me to ignore your interpretation of constitutional law. Why listen to a politician who doesn’t want to listen to the citizens?
June 4, 2022 at 2:42 pm
To all my fellow independents, can we as a group please all it to Republican so that we can control their party and toss trash like this from the political system? We make up 42% of registered voters…
June 4, 2022 at 7:49 pm
We can if we remain organized, focused and vote. DeSantis and his hateful extremist divisive policies must be defeated at the ballot box.
Independent voters rid America of Trump in 2020 …. we have the ability and the voting power to empty some of Florida’s trash in 2022.
June 6, 2022 at 6:07 pm
From In Re. T.W.
Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime, except perhaps the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment. See Wons; Perlmutter.
. . .
The decision whether to obtain an abortion is fraught with specific physical, psychological, and economic implications of a uniquely personal nature for each woman. See Roe, 410 U.S. at 153, 93 S.Ct. at 727. The Florida Constitution embodies the principle that “[f]ew decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision … whether to end her pregnancy. A woman’s right to make that choice freely is fundamental.
. . .
Based on the foregoing analysis of our state law, we hold that section 390.001(4)(a), Florida Statutes (Supp.1988), violates the Florida Constitution. Accordingly, no further analysis under federal law is required. We expressly decide this case on state law grounds and cite federal precedent only to the extent that it illuminates Florida law. We approve the district court’s decision.
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