🧵PART 2 of my thread on the Supreme Court of Fla.'s decision in Planned Parenthood v. State, where it receded from precedent holding that our state constitution's right of privacy included abortion.
We'll talk about the court's inaccurate account of preexisting Fla. case law.
Part 1 reviewing the court's analysis of the text of Florida's privacy clause is here. 2/21
Before turning to the general Florida background, one more point about the text. On page 20, the court says that "free from governmental intrusion" into "private life" "can convey a similar meaning" to "let alone." The court does not interpret these phrases separately. 3/21
This is a violation of rules of construction, which are articulated in Scalia and Garner's authoritative book on textualism, Reading Law: [4/21]
Onward. The majority's opinion contains two sections on general legal background, V(A) and (B). In this part of the thread, I'll focus on V(A). In the next, I'll look at V(B), where the court addresses Roe v. Wade. 5/21
3) FLORIDA CASE LAW ON "TO BE LET ALONE":
In V(A), the court looked at how the "right to be let alone" was understood in Florida law, i.e., its technical meaning. 6/21
This narrow framing ignores the big picture: the plain and ordinary meaning of the term that long predated any association with the Warren and Brandeis article. I already refuted the idea that we should focus on a technical meaning in my article. 7/21
But it's worth mentioning a certain inconsistency. The court believes that this obscure technical meaning of "to be let alone" in Florida law is significantly probative of its OPM, while as discussed in the next part of the thread, it dismisses the effect of Roe v. Wade. 8/21
Even so, the court ignored other, relevant Florida cases on "to be let alone." It relied in large part on Cason v. Baskin (Fla. 1944), and some others, to conclude that "to be let alone" in Florida meant something like the right against the invasion of privacy. 9/21
In fact, on page 31, the court goes so far as to say "that the specific phrase used in the Privacy Clause had a consistent meaning in Florida law and had never once been interpreted to cover abortion rights."
This is an error, and a potentially significant one. 10/21
Although not involving abortion, a supreme court case four years before Cason, Fred Howland Inc. v. Morris (Fla. 1940), is relevant. It dealt with invasive compulsory medical examinations of plaintiffs. The supreme court said (): [11/21] case-law.vlex.com/vid/fred-howla…
This relation of the right "to be let alone" to a compelled medical evaluation is, obviously, not about the invasion of privacy, in the sense meant by the Planned Parenthood court. 12/21
But then we *do* have a case about abortion!
Jones v. Smith (4DCA 1973) was decided after Roe v. Wade (). The father of an unborn child tried to get a court to forbid the mother from obtaining an abortion. The appellate court rejected the attempt. 13/21scholar.google.com/scholar_case?c…
In the opinion, the appellate court said: [14/21]
This case refutes the Planned Parenthood court's statement that the language that wound up in the privacy clause "had never once been interpreted [by Florida courts] to cover abortion rights."
There are two other relevant Florida cases mentioning "to be let alone." 15/21
In 1977, another appellate court decided State v. Alonso (3DCA 1977) (). The prosecutions in Alonso were for sex crimes arising from unlawful abortions. The court said: [16/21] scholar.google.com/scholar_case?c…
In Alonso, the right "to be let alone" was related to sexual conduct -- again, not something to do with the invasion of privacy.
Finally, in 1979, another appellate court decided Rogers v. State Board of Medical Examiners (1DCA 1979) (). 17/21scholar.google.com/scholar_case?c…
Rogers dealt with the regulation of the medical profession, but it discussed Roe v. Wade, mentioned "unreasonable governmental interference" in that discussion, and quoted Jones v. Smith. 18/21
The remainder of the Planned Parenthood court's discussion about the Florida legal background does not really seem to advance the court's argument, at least not once we see how the language in the privacy clause had actually been interpreted by Florida courts. 19/21
So as the court said, "[t]he phrase 'to be let alone' carries with it a rich legal tradition" in Florida -- just not the one the court says. The phrase "had a consistent meaning in Florida law," but a broad one. And it had been interpreted to cover abortion rights. 20/21
The court's statement that "the technical meaning of the terms contained in the provision" does "not support a conclusion that abortion should be read into the amendment's text" is based on an incomplete history.
NEXT: Thoughts on the court's analysis of Roe v. Wade & OPM. 21/21
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P.S. To put a finer point on it: The FIRST TIME "to be let alone" appears in a FL decision, it's about a person's right against the govt.'s interference with his body -- NOT against unwanted publicity. Florida jurisprudence consistently related BOTH to the right to be let alone.
The Planned Parenthood majority undermined its own account of the law by citing State v. Eitel (Fla. 1969), which concerned the constitutionality of a statute requiring motorcyclists to wear helmets -- again, bodily autonomy (). scholar.google.com/scholar_case?c…
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@threadreaderapp And another postscript. That the majority made the categorical statements about Florida law and omitted ANY discussion of the cases above is truly baffling because Justice Labarga’s dissent discussed Jones v. Smith specifically!!!
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🧵PART 7 on the Supreme Court of Fla.'s decision in Planned Parenthood v. State, where it receded from its holdings that our state constitution's right of privacy included abortion.
The final thread, on the privacy clause’s post-approval history, with an overall conclusion.
7) POST-APPROVAL HISTORY:
The privacy clause has a constitutionally significant post-1980 history.
The court dismisses it in a footnote: [2/22]
Let’s review the history.
a) In Winfield v. Division of Pari-Mutuel Wagering (1985), the Florida supreme court held, in a non-abortion case, that the people of Florida adopted a freestanding privacy right that went further than the federal right. 3/22
🧵PART 6 on the Supreme Court of Fla.'s decision in Planned Parenthood v. State, where it receded from its holdings that our state constitution's right of privacy included abortion.
We'll talk about the court's account of the history of the successful 1980 proposal.
6) THE 1980 PROPOSAL:
Spanning 8.5 pages across sections V(C) and (D) of the opinion, this is the most complete discussion of any one element of the court’s originalist analysis.
Yet, it’s still inadequate and unpersuasive. 2/24
a) The court starts w/legislative history. Its account of the legislative debate (almost nonexistent) is correct. But as we see in the 4th pic (my article), the senate sponsor was plain wrong about the right. It’s tough to see why we should place any weight on what he said. 3/24
🧵PART 5 on the Supreme Court of Fla.'s decision in Planned Parenthood v. State, where it receded from holdings that our state constitution's right of privacy included abortion.
Up now: the 1978 proposal that failed.
5) THE 1978 PROPOSAL:
In a little over three pages, here’s what the court says about the 1978 Const’l Revision Commission’s proposal. It makes a narrow claim—nothing about abortion!—which is true. But the narrowness of the claim leads to an incomplete and misleading survey. 2/20
a) Starting w/comm’n proceedings, the court emphasizes commissioner & then chief justice Overton’s remarks focusing on informational privacy at the *very beginning*. The court does not tell us what Overton said in 1989 in his separate opinion in the case it recedes from: [3/20]
🧵PART 4 on the Supreme Court of Florida's decision in Planned Parenthood v. State, where the court receded from its holdings that our state constitution's explicit right of privacy included the right to an abortion.
Here we’ll take a break and look at the big picture.
At the end of its analysis on the privacy clause’s original public meaning, the court concludes: [2/9]
So far, I’ve considered factors 1, 2, and 5. There’s actually a sixth factor, post-approval history, that the court almost entirely ignores but which is relevant. I’ll address that last. 3/9
🧵PART 3 on the Supreme Court of Fla.'s decision in Planned Parenthood v. State, where it receded from holdings that our state constitution's right of privacy included abortion.
We'll talk about the court's discussion of Roe v. Wade, one of the weakest sections in the opinion.
In the four breezy pages of V(B), the court begrudgingly "acknowledg[es] that the public understanding of the term 'privacy' was, to some extent, informed by the U.S. Supreme Court's decision in Roe v. Wade." 3/17
🧵PART 1 of my thoughts on the Supreme Court of Florida's decision in Planned Parenthood v. State, where the court receded from decades of precedent holding that our state constitution's explicit right of privacy included the right to an abortion. 1/25acis-api.flcourts.gov/courts/68f021c…
The core of the court's decision is that, when Florida's voters adopted the privacy clause in 1980, they would not have understood it to encompass abortion.
This is not a defensible application of originalism. 2/25
First, my bona fides: I wrote a law review article explaining in detail why "an honest originalist analysis leads to the ... conclusion" that the privacy clause included a right to abortion. 3/25papers.ssrn.com/abstract=41873…