So few words. So much controversy.
The challenge to Florida’s 15-week abortion ban is based on an express right to privacy and protection from government intrusion that is enshrined in the Florida Constitution.
That provision (Art. I, Sec. 23), is entitled “Right to privacy” and can be summed up in exactly 20 words. It says: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.”
If you were voting in Florida in 1980, you probably voted for it. The so-called privacy amendment passed that year, 61% to 39%, and won approval in 61 of 67 counties, as more than 1.7 million people voted for it. It passed easily in Broward and Palm Beach counties.
This was the same election that sent Ronald Reagan to the White House and Paula Hawkins to the U.S. Senate. Voters in Broward that year elected to Congress a popular mayor of Fort Lauderdale, E. Clay Shaw.
In light of the privacy provision’s central importance today to protecting the right to abortion, it’s highly ironic that the original wording of the amendment referred only to men, and news accounts of the proposal said nothing about abortion.
When it appeared on the general election ballot in November 1980, it read as follows: “Every natural person has the right to be let alone and free from governmental intrusion into his private life unless otherwise provided herein.”
The gender-specific language of “his private life” was tidied up in a 1988 amendment, also approved by voters.
The privacy amendment was the brainchild of a handful of state legislators at the time, led by Democratic Rep. Jon Mills of Gainesville, a University of Florida constitutional law expert.
Mills said Floridians needed additional protections from threats to privacy posed by emerging changes to technology, such as wiretapping.
It was seen as cutting-edge thinking at the time, as only three other states already had similar laws: Alaska, California and Montana.
What would appear on the ballot as Amendment 2 that year flew through the Legislature with only a few dissenting votes.
Others who championed the privacy amendment included Democratic Rep. Lee Moffitt of Tampa, Republican Rep. Curt Kiser of Dunedin, and Sen. Jack Gordon of Miami Beach, an outspoken liberal Democrat and a fierce protector of civil liberties.
“You have the right to be left alone,” Gordon told the Miami Herald. “The government should stay out of your business.”
As The Associated Press reported at the time, “Its legislative sponsors intended the amendment simply as a protection against government snooping into private affairs through computer data, wiretapping and other electronic devices.”
It did sound simple. It wasn’t.
Gov. Bob Graham, a Democrat, led the opposition to the amendment and urged voters to defeat it, calling it “unduly vague and ambiguous.” This newspaper and the Miami Herald both editorialized in opposition to the amendment for the same reasons.
Police and prosecutors opposed it. They expressed concern (proven to be unfounded) that the privacy amendment would hurt investigations, including ones focused on organized crime in Florida.
A political ad in the Fort Lauderdale News, urging a no vote, was sponsored by Crime Watch of Broward County, Fort Lauderdale Police Chief Leo Callahan, the Florida League of Cities, police chiefs and state prosecutors.
“Criminals who felt their privacy was being invaded by police could file criminal and civil suits against individual police officers,” the ad said.
Others saw the privacy amendment as a safeguard against persecuting people just because they were gay.
“Once this passes, the government can no longer snoop in your bedroom,” Alan Rockway, a Miami gay rights activist, told the Miami Herald.
That worried Donnell Childers, a conservative Democratic senator from Palm Beach County, who said the privacy amendment “could legitimize the homosexuals and let them come out and flaunt their views.”
Nine years later, in a critical 6 to 1 decision, the Florida Supreme Court cited the privacy clause in striking down a state law that required a minor to get parental consent before having an abortion. And in 2012, voters rejected an amendment that would have undercut the privacy amendment.
The 1989 ruling, involving a 15-year-old girl from Lake County, created the legal underpinning for Friday’s oral arguments before the state’s high court in an effort to overturn the 15-week abortion ban that lawmakers approved in 2022.
“This law is a direct assault on FL’s decades-old privacy clause in the state Constitution that prohibits government intrusion on people’s lives. Floridians support privacy and know that decisions around someone’s pregnancy are personal,” Eskamani saidhttps://t.co/D7oVr2M3uD
— Rep. Anna V. Eskamani ???? (@AnnaForFlorida) June 3, 2022
If the 15-week ban is upheld, it will ease the way for implementation of a six-week ban that passed this year.
The privacy clause has never been more critical to protecting the rights of women in Florida, and it all began with those 20 words.
Steve Bousquet is Opinion Editor of the Sun Sentinel and a columnist in Tallahassee and Fort Lauderdale. Contact him at firstname.lastname@example.org or (850) 567-2240 and follow him on Twitter @stevebousquet.