Florida's conservative chief justice once affirmed abortion protections
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Florida Gov. Ron DeSantis (R) signed a strict abortion ban hours after it overwhelmingly passed the Republican-led legislature this month - yet whether the law can take effect hinges on a case before the state Supreme Court.
At issue is a provision in the Florida Constitution intended to protect the right to privacy, added by voters decades ago and long interpreted as a safeguard against abortion restrictions in the third most populous state.
But while the state's high court has been transformed by DeSantis into a conservative stronghold, even the chief justice - whose nomination was cheered by antiabortion activists - has acknowledged that the privacy clause protects abortion.
A paragraph in a little-noticed 2004 article by Chief Justice Carlos Muñiz, then a private attorney, is now cited by abortion rights advocates in the case before the high court that will ultimately decide the fate of abortion access in the state.
"One purpose of the privacy amendment clearly was to give the abortion right a textual foundation in our state constitution," Muñiz wrote in the article for the Journal of the James Madison Institute.
For decades, more-liberal justices that once dominated the Florida Supreme Court repeatedly interpreted the clause to protect the right to abortion. As other states in the South raced to make abortion more difficult to access, Florida's Supreme Court beat back antiabortion laws passed by the Republican-controlled legislature, including a 24-hour waiting period in 2017 and a law requiring minors seeking abortions to obtain their parents' consent in 1989.
Those decisions and the precedent they set allowed Florida to maintain some of the most relaxed abortion laws of any Republican-led state. Florida previously permitted abortions later in pregnancy than surrounding states in the Southeast - and, until last spring, was the only state south of Virginia and east of New Mexico that did not require patients to schedule an initial consultation at least 24 hours before their procedure.
The court was already weighing a 15-week abortion ban passed last year when lawmakers this month approved the stricter six-week ban, which will take effect only if justices sign off on the previous law or affirm that the constitution does not include a right to abortion.
Planned Parenthood and its co-plaintiffs argue that the legislation is unconstitutional and "violates Florida's fundamental right to privacy," citing Muñiz's 2004 statement about the privacy clause in their opening brief. "In fact, no Justice of this Court has ever openly questioned that the Privacy Clause encompasses abortion rights," the lawyers write, attributing the statement to Muñiz's article, among other citations.
The passage surprised leading antiabortion advocates in Florida, who have waited for this moment and a conservative court majority for decades.
"It's a factually problematic statement and an uninformed statement," said attorney John Stemberger, president of the antiabortion Florida Family Policy Council. "He was shooting from the hip."
But Adam Richardson, a West Palm Beach-based appellate lawyer and Democrat who read Muñiz's essay while researching his own article about abortion in Florida, said the article reveals why the privacy clause has made it so difficult for antiabortion laws to find traction in the state and should give abortion rights advocates "some reason for optimism."
"It's exactly the argument that Planned Parenthood is making at the Florida Supreme Court right now," Richardson said. "In one paragraph, that's the originalist thesis for why the privacy amendment protects abortion. It's a very confident sounding statement."
Muñiz, 53, declined to comment through a spokesman, saying that judicial rules forbid justices from discussing matters before the court. A review of his judicial application in 2018 shows he listed the James Madison Institute article, but the citation received no public notice at the time.
Olivia Cappello, a spokeswoman for Planned Parenthood Federation of America, the nationwide umbrella group, declined to comment on Muñiz's article but said the facts of the law are clear.
"Florida's constitution contains strong protections for the right to medical privacy," she said in a statement. "Those protections extend to abortion, as many legal scholars - including the author of this law review article - have acknowledged."
The court's decision on abortion looms as the 2024 presidential race gets underway, the first since the U.S. Supreme Court overturned Roe v. Wade and opened the floodgates to states seeking to curb abortion. DeSantis, a likely GOP contender, has tried to position himself as a champion of the antiabortion movement.
The impetus for Muniz's 2004 article was a ballot initiative to add an amendment to the state constitution requiring minors to obtain parental notification before accessing abortion. While Muñiz acknowledged that the right to abortion is generally protected by the privacy clause, he also wrote that protection does not necessarily extend to minors seeking to end pregnancies on their own.
Muñiz, who worked in the early 2000s as deputy counsel to Gov. Jeb Bush (R), added that the legislature also plays an important role in interpreting the constitution.
"There are many sound reasons why the Constitution assigns to the legislature, rather than the courts, the power to make fundamental policy choices. Most importantly, the legislature is more directly accountable to the people," Muñiz wrote.
Post-Watergate concerns about civil liberties in part led to the 1980 constitutional privacy amendment - which was passed by about 60 percent of Florida voters - granting "the right to be let alone and free from governmental intrusion into the person's private life." Abortion rights advocates at the time viewed the amendment as an insurance policy in case Roe v. Wade someday fell.
The clause has buttressed some of the strongest and wide-ranging privacy laws in the country.
Florida's reputation as a haven for women seeking to terminate their pregnancies frustrated antiabortion advocates, who committed themselves to reshaping the state Supreme Court. Bush's gubernatorial election in 1998 ushered in an era of increasing Republican dominance of Florida government.
The opportunity to flip the court finally arrived when DeSantis took office in 2019, as the three of the court's most liberal justices reached retirement age and were forced to step down.
In his first two weeks in office, DeSantis appointed three justices, including Muñiz, flipping the court from a 4-3 panel dominated by liberals to a 6-1 panel controlled by the new conservative wing. Among the other justices on the court today are Justice Jamie Grosshans, who omitted ties to antiabortion groups in her application, and Justice Charles Canady, a staunchly antiabortion former Republican U.S. House member whose wife is a Florida legislator who co-sponsored the six-week ban.
Muñiz was serving as general counsel to President Donald Trump's education secretary, Republican Betsy DeVos, when Muñiz applied to the high court in 2018. He had previously worked as policy director for the Florida Republican Party and for Republican Pam Bondi when she served as state attorney general.
His nomination by DeSantis was cheered by antiabortion groups such as Florida Family Action, which in a statement described his family as supporters of a Tallahassee clinic that steers pregnant people away from abortion.
In his application to serve on the Florida Supreme Court, Muñiz wrote: "I would decide cases based on a faithful, principled interpretation of the text, structure, and history of the constitutional provision or other law at issue. In doing so I would hope to give the people of Florida confidence in an impartial judiciary and in the rule of law."
Trump put Muñiz on a shortlist for the U.S. Supreme Court when he was running for reelection in 2020.
As DeSantis campaigned for a second term last year, he signed the 15-week ban at a news conference at a church. Abortion providers quickly sued to challenge the law.
But after Roe v. Wade was overturned, Florida Republicans decided to go further, energizing religious conservatives who play an outsize role in GOP primaries. DeSantis signed the six-week ban with less fanfare amid concerns that the law could turn off moderate voters in the 2024 general election.
If it takes effect, the six-week ban will affect abortion access far beyond the state of Florida. More than 82,000 people got abortions in Florida in 2022, more than almost any other state. Floridians - along with patients from other states who had been traveling to Florida - will have to drive or fly hundreds of miles to get an abortion in Illinois or North Carolina, where clinics are already overwhelmed with out-of-state patients.
"That is taking spots that Alabamians and Mississippians need right now," said Robin Marty, director of operations at the West Alabama Women's Center, a clinic that provided abortions before Roe was overturned. "That's a crisis that's going to ripple all across the entire country."
Antiabortion advocates remain optimistic the Supreme Court will uphold the 15-week ban, allowing the six-week ban to take effect.
"People's minds change and the legal landscape changes. The biggest change was Roe versus Wade's reversal," said Andrew Shirvell, executive director of the antiabortion group Florida Voice for the Unborn.
"I feel fairly confident that they are going to rule the right way, but it's more complicated than it seems," said Stemberger of the antiabortion Florida Family Policy Council. "This court has shown it is willing to overturn bad precedent of previous courts, and this is surely bad precedent."
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The Washington Post's Alice Crites and Ann Marimow contributed to this report.
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