Phony Originalism Could Cost Florida Women Their Abortion Rights

A challenge to Florida’s stringent abortion regime is currently before the conservative Supreme Court of Florida. The challenge is based on Florida’s right to privacy. Voters enshrined that right in our constitution in 1980 and, starting with 1989’s case In re T.W., the court held that the provision protects the right to abortion. The 15-week ban should fail given those authorities, but the state of Florida has asked the court to recede from its precedents. Under public meaning originalism, which conservative judges use to interpret constitutions today, the meaning of a constitutional provision at the time it was adopted controls. So the case has come to revolve around the original public meaning of the privacy right now found in Article I, Section 23 of the Florida Constitution—that is, what Florida voters in 1980 more likely than not would have understood the language of the proposal to mean.

The Supreme Court held oral argument in September 2023, with a majority expressing skepticism that the privacy right encompasses abortion; we should expect a final decision in the next few months. During the argument, multiple conservative justices suggested that the public in 1980 did not understand the amendment to protect abortion, because there is no record of such debate.

But there is historical evidence that public discussion about the amendment acknowledged its potential impact on reproductive rights. That the Florida Supreme Court might declare otherwise reveals a key flaw in originalism: Judges must rely on a historical record that is inevitably incomplete, with gaps in the evidence leading to inaccurate conclusions.

Section 23’s text sweeps broadly. It states, in full:

The state and its fellow travelers argue that the public understood Section 23 to protect only Floridians’ right to control their personal information (informational privacy) rather than control over personal decision making (decisional privacy), including abortion. They are wrong. In separate law review articles, I and Stetson University law professor James Fox argue that Section 23 was originally understood to protect decisional privacy, including the decision to have an abortion.

The historical materials uncovered before the oral argument, mostly newspaper articles, showed that after they voted to send the proposal to voters, state legislators claimed the proposed right was limited to informational privacy. Additionally, abortion was mentioned only a few times during the public debate. But it was communicated to voters that the proposed right was extremely broad, would mirror or exceed the rights protected by the federal Constitution, and would protect informational and decisional privacy. Add to that the general political, social, cultural, religious, and legal background. Most importantly, in 1973’s Roe v. Wade, the U.S. Supreme Court rooted the right to an abortion in a broader constitutional right to privacy—something the public widely understood.

At the oral argument in the Florida Supreme Court, Justice John Couriel, a Gov. Ron DeSantis appointee, observed that in 1980, advocacy organizations did not debate each other on whether the proposed amendment would include abortion. “You don’t even see an op-ed saying, ‘Well, this is about Roe,’ ” Couriel said.

Further research shows that there were, indeed, op-eds stating more or less exactly that.

On Oct. 31, 1980—just before the Nov. 4 election—the Catholic Archdiocese of Miami’s weekly newspaper the Voice ran an editorial titled “Privacy Proposal a Pandora’s Box?” The editorial recommended the proposal be defeated. One of the things it said (emphasis mine):

We see something similar in a much different part of the state, rural Madison, located in central north Florida. On Oct. 24, the weekly Madison Enterprise-Recorder ran an op-ed by a young local lawyer discussing that election year’s proposed amendments. About the proposed privacy right, the lawyer wrote, in part (emphasis mine):

For unpersuasive reasons, the lawyer nonetheless concluded that the proposed Section 23 could not be used in the same way. He said he’d vote for it.

And there were more than op-eds. On Oct. 29, the Bradenton Herald on the west coast of Florida ran a report from the Associated Press that I discussed in my article. The report stated that Bob Kunst, a prominent Miami gay-rights activist who stumped for the amendment across the state, “contends it would void anti-abortion laws.” Further research shows that the same day, the Ocala Star-Banner in north Florida ran the AP report. There is no reason to think these are the only two instances; this report likely ran in other local papers around the state.

Kunst comes up again in more recent materials. Every 20 years, Florida has a Constitutional Revision Commission that vets possible amendments to put to our voters. In the 2018 cycle, one of the commissioners, John Stemberger, a co-author of the law review article arguing that Section 23 protects only informational privacy, introduced a proposal to exclude abortion from Section 23. At a public hearing, Kunst told the commission (emphasis mine):

Although this account comes to us decades later, I find it probative. Aside from agenda-driven pro-life activists, no one in 2018 seriously cared about the original public meaning of Section 23—public meaning originalism had not yet been employed by the Florida Supreme Court. So there was no reason for Kunst (a Trump supporter) to shade his recollection of the public debate on this point.

In news clippings from 1980 that Kunst submitted to the CRC, we find a letter his associate, Dr. Alan Rockway, wrote to the editor of the Weekly News, a newspaper for the South Florida gay community, on Oct. 22, 1980. Rockway wrote (emphasis mine):

Sounding a similar note, there is an article from the Sept. 23 edition of the Sun-Sentinel, also in south Florida, reporting (emphasis mine): “Kunst said the amendment will give backing to court challenges of issues such as prostitution, gun control, abortion rights and others when government intrudes in personal lives.” Further research also found this in the Ledger, from west Florida’s Lakeland, on Nov. 3 (emphasis mine): “Kunst … says the amendment could be used to litigate everything [including] the state forbidding abortions.”

At times in the oral argument, the current justices of the Florida Supreme Court hinted at an understanding that voters would have reasonably tied Florida’s right to privacy with the federal right to privacy, which emerged in the context of reproductive rights. Chief Justice Carlos Muñiz, a DeSantis appointee, suggested at the oral argument that the connection between Roe and privacy “was part of, sort of the, our cultural kind of lexicon.” Later, though, Muñiz added: “In a legal sense, privacy may have included abortion, but it doesn’t seem like the people of Florida really had an actual debate over this when it was adopted.”

Another DeSantis appointee, Justice Jamie Grosshans, asked the plaintiffs’ lawyer:

This question points toward broader flaws with applying originalist methodology: No one has reviewed the full universe of publicly available materials; neither the plaintiffs, defendants, nor justices are historians. But the research undertaken by me and others—including one of the state’s allies—suggests that the original meaning of Section 23 was that it would protect decisional privacy, a part of which, unquestionably, is the right to an abortion.

Clearly there are more materials from 1980 out there undiscovered, and not just online. What else could be in the physical archives of libraries, newspapers, and even local television news stations? Indeed, Kunst’s submission to the 2018 CRC points to this TV programing note in the Miami News for channel 10’s Florida Journal on Oct. 19: “Debate on Privacy Amendment: Dr. Allan [sic] Rockway, Florida for Privacy Rights, vs. Mike Thompson, Florida Conservative Union.” We will likely never know the answer to the question of what else is out there, because the practice of law is not the practice of history; real historians understand that there are no “right” answers in history, as there is always room for doubt.

In the consequential case before it, where the state asks the justices to use patchy historical evidence to overturn decades of pro-choice precedent, the Florida Supreme Court will have to gamble: Is it more likely that what’s out there further demonstrates a debate that connected Section 23 to abortion? Or is it more likely there is some undiscovered smoking gun that conclusively proves voters understood there was no connection between Section 23 and reproductive freedom?

To recede from In re T.W. and later cases, the court must be convinced that it clearly erred. Put another way, it must come to a definite and firm conviction that the precedent was wrong. If the gaps in the evidence leave room for doubt about what the voters in 1980 understood, and since that debate was in the living memory of the justices who decided In re T.W., it is difficult to see how that standard can be met.