Florida Supreme Court justice should recuse himself on key abortion case, says ex-chief justice

FORT LAUDERDALE, Fla. — Barbara Pariente, a former chief justice of the Florida Supreme Court, said Tuesday that one of the current justices, Charles Canady, should recuse himself from the case before the court that will decide if state efforts to sharply reduce access to abortion are constitutional.

Canady has a long and deep record of opposition to abortion, dating back to his time in the state Legislature and Congress. But that’s not why Pariente, and some others in the legal world, think Canady ought to step aside.

The reason is the work of his spouse, state Rep. Jennifer Canady, a Lakeland Republican who is co-sponsor of the new state law that would ban virtually all abortions in Florida.

“In my view, he should (recuse himself). And the reason is that his wife was a co-sponsor of the six-week abortion ban,” Pariente said. “I know Justice Canady to be of the highest ethics. I cannot imagine himself not recusing himself from a bill that his wife co-sponsored. So the answer would be yes, because of that.”

Pariente offered her view in response to a question from a reporter at a forum on abortion access organized by U.S. Rep. Lois Frankel, a West Palm Beach Democrat. Now retired from the court, she joined Frankel and other abortion rights supporters in discussing the effects of the June 24, 2022, U.S. Supreme Court opinion overturning Roe v. Wade.

They also touted a proposed amendment that would enshrine abortion rights in the state Constitution.

Under longstanding state Supreme Court precedent, the right to privacy in the Florida Constitution has been applied to cover access to abortion.

But there is widespread expectation that it will be overturned by the current court, where five of the seven justices are appointees of Gov. Ron DeSantis. Canady, appointed earlier, is a sixth conservative justice. The seventh, Justice Jorge Labarga, is more centrist than the others.

The case

The current case before the state Supreme Court involves a challenge from Planned Parenthood and other organizations to the 2022 state law that banned almost all abortions after the 15th week of pregnancy. Previously the state had allowed abortions until the 24th week.

If the state Supreme Court rejects the Planned Parenthood challenge and upholds the 15-week ban, then newer, even tighter restrictions passed by the Legislature and signed by DeSantis this year would go into effect 30 days later.

The latest law — co-sponsored by Jennifer Canady and on hold until the Supreme Court acts on the 15-week issue — would ban virtually all abortions after the sixth week of pregnancy.

Pariente said her assessment is that the right of privacy in the state Constitution should protect women “from what in my view is clearly an unconstitutional law both at 15 weeks and six weeks.”

“My concern is that the Florida Supreme Court may decide not to adhere to their precedent, which would mandate that these laws in my view would be declared unconstitutional.”

Bob Jarvis, a professor of constitutional law at Nova Southeastern University, he sees little chance the court’s conservative majority won’t overturn the precedent.

Both sides have made written arguments to the state Supreme Court, which could issue an opinion at any time. The Florida Supreme Court doesn’t hold to a strict term schedule like the U.S. Supreme Court, which imposes a late June-early July deadline on itself every year.

Andrew Shirvell, founder and executive director of Florida Voice for the Unborn, complained last week via email that the Supreme Court “appears to be taking as long as possible to reach a decision.”

Pariente served on the Supreme Court from late 1997 until her retirement in January 2019 after time as a judge on the 4th District Court of Appeal. Part of her tenure overlapped Canady, who was appointed to the Supreme Court in 2008 and has served as a chief justice, after serving as judge on the 2nd District Court of Appeal and eight years in Congress and six years in the state House of Representatives.

Canady is credited — or blamed — with inventing the term “partial-birth abortion” when he sponsored legislation to outlaw a rarely performed method of late-term abortions. The bill was vetoed by then President Bill Clinton. (Canady later served as one of the House impeachment managers during Clinton’s trial in the Senate, which resulted in Clinton’s acquittal.)

Frankel and Canady were both in the Florida House of Representatives in the 1990s, and were on the opposite sides of the abortion debate decades ago. Pariente said Canady’s past work on the issue as a legislator does not necessitate recusal.

Recusal

Decisions on whether justices recuse themselves are up to the individual justices, said Pariente and Jarvis.

“Each justice has the right to make that decision,” she said.

Canady hasn’t made any move to recuse himself, at least as is publicly known. Justices don’t comment on pending matters, instead making their positions and actions known through decisions. Court spokesman Paul Flemming said Canady hasn’t commented on recusal.

Practically speaking, Jarvis said, it ought to be easy for Canady to recuse himself because his vote isn’t needed. Under the current composition of the state Supreme Court, it’s all but guaranteed to uphold the abortion restrictions.

“You are not needed for this decision because we have a court made up right now, as everybody knows, of six hard-right justices,” Jarvis said. “It’s not like you’re the swing vote, so why not recuse yourself?”

Jarvis’ theory is that Canady wants to be part of the decision restricting abortion that is in many ways a culmination of his life’s work. “I don’t think at this moment, when abortion is going to be struck down in Florida — something he has worked on for decades — I don’t think he cannot be there at the finish line,” Jarvis said.

“If you’re really concerned about the legitimacy of the court in the eyes of the public and the legitimacy of the opinion in the eyes of the public, and you know that you’re not needed, you should step aside. That would be the politique thing to do,” Jarvis said.

Jarvis said there is nothing in the Florida Code of Judicial Conduct that says he has to recuse himself. “So the question then becomes whether it would be better for him to recuse himself, since he clearly does not have to recuse himself. And that, I think, is a no-brainer,” Jarvis said. “I think it’s very clear that he should recuse himself.”

Jarvis said there is a judicial cannon that says a justice should recuse to avoid the appearance of impropriety, and some people would suggest that Canady’s spouse’s co-sponsorship of the legislation at least gives the appearance of impropriety.

The counterargument, he said, is that the justice can say, “I am not responsible for what my spouse does. And I cannot tell my spouse what to do or what not to do.” And, she is only one of 160 state legislators.

Year since Dobbs

At the forum in West Palm Beach, Frankel addressed the changes in laws across the country since the U.S. Supreme Court overturned Roe in the Dobbs v. Jackson Women’s Health Organization decision.

Florida is the last state in the southeast with some abortion access, though it’s been limited by the 15-week ban that’s been in effect while pending in the state Supreme Court. The law has no exceptions except for victims of rape or incest.

If the state Supreme Court allows the prohibition on abortions after the sixth week of pregnancy to go into effect, Frankel said women in Florida — those who could afford the time and money — would have to travel far to seek abortions. And women from other southeastern states would have to turn elsewhere; since Roe was overturned, many have come to Florida.

“It’s a time bomb especially for women of the South,” she said, pointing to a map of the U.S. with states that have curtailed abortion rights in red.

Dr. Melanie Bone, a board-certified OB-GYN, said the six-week ban would be especially problematic.

“Most women have no idea that they’re pregnant at six weeks, even smart women, even women with access to all sorts of contraceptive techniques. They just don’t know they’re pregnant,” she said.

Pariente said the six-week timing “seems outrageous.”

The pending law would permit later abortions to save a pregnant woman’s life, and after six weeks and up to 15 weeks in cases of rape, incest or human trafficking.

Several participants said they support efforts by abortion-rights advocates to gather petitions to put an abortion-rights amendment to the state Constitution on the ballot in 2024.

Pariente said the proposed amendment would restore Florida to where it was before Roe was overturned. And Frankel said it would still allow for “reasonable medically necessary restrictions, which was allowed under Roe.”

Bone said restrictions are already putting physicians in the precarious position of having to choose between providing the best care they know how and risking criminal charges for running afoul of state law. Bone said she couldn’t think of any other area of medicine “where practicing excellent medical care could entail a prison term or fine.”

State Rep. Jervonte “Tae” Edmonds, a West Palm Beach Democrat who voted against the six-week ban, said it was “a perfect example of what injustice looks like.”

Edmonds said it runs counter to DeSantis’ boast that Florida is all about freedom. “We cannot say we’re the free state of Florida when we’re trying to control women’s bodies.”

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