Florida Politics

Rights to abortion, privacy could diminish under proposed constitutional amendment

Members of the Constitutional Revision Commission listened to residents during a town hall meeting with Floridians in Miami at Florida International University in Miami, Thursday April 06, 2017.
Members of the Constitutional Revision Commission listened to residents during a town hall meeting with Floridians in Miami at Florida International University in Miami, Thursday April 06, 2017. pportal@miamiherald.com

Abortion restrictions would face fewer legal hurdles in Florida, and the state’s unique right to privacy would be significantly narrowed, under a proposal that was advanced by a key committee of the Constitution Revision Commission Thursday.

Under Proposal 22, approved Thursday by a 4-3 vote of the CRC Declaration of Rights Committee, the existing privacy right is narrowed from giving every person the right “to be let alone and free from governmental intrusion into the person’s private life” to restricting government intrusion to only “information and the disclosure of that information.”

The CRC is the 37-member board that has the power to put amendments directly on the November 2018 ballot. If approved by the full commission in March, the measure would appear before voters.

If adopted, parental consent and 24-hour waiting periods on abortion — laws thrown out by Florida courts in recent years because of the current privacy clause — could be restored, said John Stemberger, an Orlando attorney and sponsor of the measure who has been a longtime anti-abortion advocate.

John Stemberger, an Eagle Scout and Orlando-based attorney speaks out during a news conference against the Boy Scouts of American decision allowing openly gay scouts to participate in scouting Thursday, May 23, 2013, in Grapevine, Texas. Tony Gutierrez AP

“It doesn’t invalidate all the existing case law, but new statutes would have to be interpreted under the new provisions,” he said.

Abortion rights groups argue that the proposal is aimed directly at restricting legal abortion in Florida because it would no longer protect personal autonomy and decision making.

Other groups, from the American Civil Liberties union, the Anti-Defamation League and the League of Women Voters, warn that the measure also opens the door to other forms of government intrusion. They warn that governments could allow anything from drone surveillance and mandatory genetic testing for certain occupations to limiting parental rights to home-school educations for their children.

“This proposal is not about safeguarding informational privacy,” said Kara Gross, legislative counsel for ACLU of Florida. “That is already protected in Florida’s privacy clause. This proposal is about stripping away existing privacy rights.”

Florida’s privacy amendment is broader and more comprehensive than the federal privacy right. It was first proposed by the 1978 CRC but rejected by voters when all CRC proposals were defeated. It was then added to the 1980 ballot and passed with 60.6 percent of the vote.

Stemberger argues that the courts have expanded the intent of the privacy amendment, which was intended to protect the public from government overreach in the wake of Watergate: keeping the government out of spying on people’s wire transfers and fax machines.

He said that when the privacy amendment was first contemplated by the CRC 40 years ago, “there was no reference to abortion anywhere on the record.”

“This amendment would force the court to focus on the legitimate right to privacy — like drones used to gather information,” he said. “The original intent was for informational privacy and the court has well-exceeded that.’’

A legal brief prepared by Jon Mills, a former dean of the University of Florida law school who was one of the sponsors of the 1980 privacy amendment, on behalf of the opponents argued that Florida’s privacy right “offers Floridians a shield to protect themselves in a future in which technology and government intrusions are not predictable and frankly, completely unknowable.”

He said that Stemberger’s proposal could subject Floridians “to a higher possibility of governmental intrusion in their private lives.”

If the full 37-member commission puts the measure on the ballot and voters approve it by the required 60 percent, Stemberger argues that abortion would still be a protected right in Florida but the Florida Legislature could pass restrictions.

Commissioner Arthenia Joyner, a former senator from Tampa and one of the state’s civil rights pioneers, blasted the proposal as “a masquerade of terms designed to conceal the real intent and disguise the real dangers.”

She said the measure would “weaken our government to invade our lives at whim” and compared the right to abortion to the long-fought civil rights battle.

“Thank God there was an evolution in this country,” she said. “This amendment goes down to one fundamental question: Do you want to give government broader powers to snoop into my personal business?”

She called the idea an attempt to “impose someone else’s morality on all the women in Florida.”

Stemberger countered that “the things that will disappear are the things that are bad.”

He said that parental consent laws “protect against predators and against statutory rape” and argued that existing federal laws already protect the right of parents to home-school their children.

Planned Parenthood of Florida reported in its annual report to the Legislature that while judicial bypass is rare it is needed in cases where teens are at risk. Of the nearly 70,000 abortions in Florida in 2016, 193 of them involved teens going to court to seek judicial bypass, the report said.

Stephanie Piniero, 25, a social worker in Orlando, urged the commission to reject the idea. She said she sought a judicial bypass to obtain an abortion when she was 17 because her father had a history of beating her.

Under the state’s parental consent law during that the time, she was required to bring her parents to the clinic in order to obtain an abortion.

“Bringing my parents to that abortion provider would jeopardize my safety and my future,” she said. Meanwhile, she searched for ways to end her pregnancy.

“I considered throwing myself down the stairs and even ending my life, knowing a pregnancy would end my future,” she said. After searching for a lawyer who would take her case at no charge, she obtained a judge’s permission three weeks later and had the abortion.

“I’m thankful for my abortion,” she said. “I was determined to have an abortion with or without the state of Florida’s permission ... I urge the CRC to preserve the explicit privacy protections in Florida’s Constitution.”

Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas

This story was updated to correct the number of abortions performed in Florida in 2016 and to clarify comments by Arthenia Joyner.