Saturday, August 20, 2022
The Originalist Case for Why the Florida Constitution's Right of Privacy Protects the Right to an Abortion
Adam Richardson (affiliation not provided to SSRN), The Originalist Case for Why the Florida Constitution's Right of Privacy Protects the Right to an Abortion, SSRN (2022):
Since the U.S. Supreme Court overruled Roe and Casey and returned the issue of abortion to the states, attention has shifted to state constitutions: Do state constitutions protect the right to an abortion? Florida is one of the few states whose constitution contains an explicit right of privacy. That provision, article I, section 23, was adopted by the voters in 1980. It states: “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. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” Not a decade later, the Florida Supreme Court held that section 23 protected the right to an abortion, and the court reaffirmed that holding in the decades since. But the Florida legislature recently passed, and the governor signed, a surely unconstitutional law that largely bans abortions after fifteen weeks—setting up a challenge to the court’s abortion precedents. The state and prolife activists believe that those precedents are wrong. Invoking originalism, they say that the original meaning of section 23 was that it protected only the right to informational privacy—the right to control personal information—not the right to an abortion. The larger implication of their argument is that section 23 does not protect the right to decisional privacy, which is a person’s right to make certain kinds of important decisions.
Is that right? I seek to answer that question here by applying the principles of public meaning originalism, the dominant version of originalism. After explaining the basics of originalism, I engage in a careful, phrase-by-phrase analysis of section 23’s text. Then, I examine the history of section 23 at length, covering the general background, an earlier and unsuccessful attempt in 1978 to amend the Florida Constitution to add a privacy right, the successful proposal in 1980 that resulted in section 23, and post-approval history. Applying the principles of public meaning originalism to assess the historical evidence, my conclusion is that the original understanding of section 23 was that it would protect informational privacy and decisional privacy, including the right to an abortion.