Even if Roe v. Wade is reversed, Florida Constitution protects abortion rights | Opinion

Gary Beatty
Your turn

Roe v. Wade is arguably the most controversial decision ever handed down by the U.S.  Supreme Court. With the exception of the 1857 Dred Scott decision, which contributed to the Civil War, no case has split our society like Roe.

Lost in the inflammatory rhetoric from both sides is what Roe actually decided. It merely held that under the U.S. Constitution there was a privacy right to abortion that could not be infringed by state laws. If Roe is ever overturned the only result would be that each state could enact its own abortion laws. Those for whom politics comes down to preserving Roe need to know that if you live in Florida, you can chill because of our states constitution's protection of privacy. 

My feelings about abortion are irrelevant to a discussion of the law, but for full disclosure, I support abortion on demand for the first trimester, and anytime thereafter in cases where it is necessary to preserve the mother’s life.

Now back to the law.

There is no dispute the U.S. Constitution says nothing about a right to abortion. Nor does it expressly provide a “right to privacy.” Any “privacy” right to abortion based on the U.S. Constitution was conjured up by Justice Powell to decide Roe.

A Sunday morning pro-choice rally organized by Brevard Women's March 2019 called "Our Bodies, Our Choice" was held along the Eau Gallie Causeway. The abortion rights participants formed on the east side of the causeway on May 19 in several groups and walked over the bridge, holding signs protesting the recent pro-life legislation in several states.

Because any federal constitutional “privacy” right to an abortion was a judicial creation, it can be changed by succeeding justices. While I agree with the idea of Roe, I recognize it has no actual constitutional basis, and the underlying legal reasoning is so fundamentally flawed it can’t withstand honest intellectual scrutiny, thus rendering it easy to overturn. 

But whatever the U.S. Supreme Court may decide to do with Roe won’t matter in Florida because our state constitution has an express right to privacy. Article 1, Section 23 states: 

“Every natural person has the right to be let alone and free from governmental intrusion into the person's private life.”

The Florida Supreme Court has declared that while any right to privacy under the U.S. Constitution is judicially created (thus subject to judicial whim), an express privacy right such as Article 1, Section 23 is not subject to judicial limitation except under the most exacting standards and unique circumstances. The court has further declared that article applies to the decision to have an abortion.

Gary Beatty

States can recognize that their citizens have more rights than are enumerated in the U.S. Constitution. Though there is no enumerated right to an abortion in the Florida Constitution, it protects your right to kill as many of your own fetuses as you wish (Oh, is that too real? Well I don’t delude myself about the reality of abortion). Just like it protects my privacy right to own as many AR-15s as I wish.

The Florida Constitution equally protects both abortion and AR-15s. What they have in common is freedom from government intrusion into our private lives.

The Florida government can’t choose whose private life to intrude into based on political affiliation, political correctness, or the sentiments of one group about the morality of the lawful activities of others. If I consider owning AR-15s is a right, and a private matter which is none of the government’s business, then I must extend the same respect to your private decision about abortion — and vice versa. 

Gary Beatty lives in Sharpes and is retired from 30 years as an assistant state attorney in Brevard County. He’s now a law professor at Barry University College of Law in Orlando.