James Cueva - Politics Blog

My colleague and fellow Florida attorney George J. Felos eloquently sets forth why the recent Florida Supreme Court decision overturning 50 years of state court precedent and directly ignoring the will of Florida voters and the plain language of the Florida Constitution is a political hack job that undermines the independence and trust we place in the judiciary. He also comments on the politicization of the judicial branch from the US Supreme Court down to state courts, which have seen reversals of precedent from one year to the next, just because of the outcome of a particular election. I hope you enjoy his editorial opinion article. I will say I agree 100% with the concerns he raises about judicial independence, stare decisis and the erosion of public trust in the judiciary due to the politicization of a branch of government that should be beyond the influence of politics, but increasingly - and sadly too often - is not.

The Florida Supreme Court – Abortion & Rule of Law

by George J. Felos, J. D.

Having argued two landmark privacy cases before the Florida Supreme Court, I’m saddened to see the court hold that a woman’s ability to have an abortion is no longer protected under the Florida Constitution’s privacy clause. As a lover of the law and the rule of law, the sadness is in watching our Supreme Court devolve into a third political branch of government, where decisions appear to be based upon the personal beliefs and political agendas of the justices and governor who appoints them.

The rule of law and respect for the law depend, at a minimum, upon the public perceiving that judicial determinations are based upon underlying legal principles rather than a court’s current personnel. We need not look far to see damage to the courts when judges act upon personal belief and political persuasion.

Former President Trump announced while campaigning that he would appoint judges to overturn Roe vs. Wade. Amy Coney Barrett, appointed by Trump, signed a published declaration that life began at fertilization and abortion is “barbaric.” Was there any real question how she would vote once given the opportunity to reverse Roe? And does anyone really wonder why the US Supreme Court is at an all-time low in public confidence and respect, now viewed more as apolitical body than a repository of jurisprudence?

Look at the judicial chaos in North Carolina and Wisconsin. The political affiliations and preferences of the judicial candidates are not only known, but actively espoused. In 2022 the North Carolina Supreme Court ruled that partisan gerrymandering violated the state constitution, and one year later it ruled it did not. What happened? An intervening election changed the court’s composition from Democrat to Republican. The Wisconsin Supreme Court just undid its prior redistricting decisions. Why? An intervening judicial election where the winning candidate expressed her views against partisan gerrymandering. Where is the rule of law when the law changes on a dime due to the court’s composition? Why should the public have any confidence that courts are really arbiters of facts and interpreters (not makers) of the law?

Our current governor appointed supreme court justices with reported anti-abortion credentials, leading pundits to predict that the court would deliver on that political agenda. Unfortunately, the Florida Supreme Court did little to dispel that notion. Not only is its opinion legally unpersuasive, but worse, the justices use their opinions to trumpet their pro-life/anti-abortion beliefs.

As to the first, in 1980 Florida voters adopted a constitutional amendment enshrining the right to be let alone and free from governmental intrusion into their private lives. For decades our Florida courts have ruled that this “right-to-privacy” pertains to decisions regarding abortion. But now, the majority goes to great pains, via a lengthy historical analysis, to justify their conclusion that Floridians were clueless in 1980 that the amendment pertained to abortion. The problem with judges posing as historians is that this pursuit is rife for cherry-picking the historical record to justify a result. If one reads the dissenting opinion’s historical analysis, the majority’s exercise appears to do just that.

Beyond its foray into history, the weakness in the majority’s opinion is betrayed by its use of contorted logic. According to the majority, abortion is not a matter associated with the right to privacy because an abortion, as a “medical intervention,” requires “both the presence and intrusion of others.” According to the court’s logic, the presence of third parties renders a decision to end a pregnancy no longer a “private” matter. Perhaps a woman can retain her right of privacy by choosing to perform her own abortion?

This fanciful logic and dicta are dangerous. I am particularly concerned, having decades before argued before the Florida Supreme Court In Re: Browning––establishing the right to remove or have withdrawn unwanted medical treatment as constitutionally protected under the privacy clause. I later argued Bush v. Schiavo, which reaffirmed Browning and rebuffed the legislature’s and governor’s intrusion into Terri Schiavo’s constitutional right of privacy to terminate artificial feeding.

Although the current decision states it is limited to abortion, the same historical analysis and notions of privacy could easily be applied to the right to govern your own medical treatment. Implementing medical-treatment decisions––especially the withdrawal of a medical apparatus––necessarily involve health-care professionals. Utilizing this court’s analysis, they are no longer “private” and no longer constitutionally protected.

More troubling is this court’s decision to infuse its proceedings with expressions of individual justices’ personal beliefs. At oral argument, Chief Justice Muñiz, referring to the unborn, proclaimed to counsel:

“You are asking us to essentially take a whole class of human beings and put them outside of the protection of the law essentially in the sense if the legislature wants to protect those human beings they are precluded by the Constitution of Florida from doing that.”

(The Chief Justice repeated this sentiment in his concurring opinion to place the proposed abortion constitutional amendment on the ballot.)

What you call the prenatal development of a human offspring––whether fetus, unborn child or “human being”––depends on your very personal view of religion, morals, philosophy, and science. We expect that one using the phrase “human being” is inclined to impart legal rights to the unborn rather than one using the phrase “unviable fetus.” The Chief Justice could easily have used the neutral term “unborn.” His choice of words appears to serve no other purpose than to broadcast his own personal beliefs and opinions. The Chief Justice is, as we all are, entitled to his very personal views. But needlessly declaring them in these proceedings imparts the impression that his decision-making is being driven by those beliefs.

More disturbing is Justice Grosshans’ dissenting opinion in the abortion-ballot case, to which Justice Sasso concurs. In it, the banner of “personhood” for the unborn is raised and its clarion call issued. To Justice Grosshans, the proposed ballot amendment is “misleading” because it fails to inform the public that it “would likely impact” the constitutional provision giving “all natural persons . . . the right to enjoy and defend life” (Art. I, Sec. 2). These justices strained at great length to conclude that the public had no idea the privacy amendment impacted abortion; yet now, they likely conclude the citizenry somehow knew that Section 2 of the declaration of rights, when last adopted, included personhood for the unborn!

“Personhood”is the flag under which the pro-life/anti-abortion political movement is marching. While Justices Grosshans and Sasso may agree with this movement, using their judicial positions to espouse that movement damages this court and the rule of law. Who reasonably believes that they will bring an open and dispassionate mind to future cases regarding abortion? If we are to have a Supreme Court driven by personal and political beliefs, let’s elect our justices so we can at least determine where they stand on the issues.

Of course, our Supreme Court changes course based upon the governor appointing justices. A governor is entitled to select justices according to judicial philosophy. But the most fundamental duty of a justice is to maintain the integrity of the court as an independent body deserving the respect of the public. Radical and seemingly political judicial results, infused with personal ideologies, appear pre-determined. Such decisions destroy public confidence in the court, the law, and government, thereby damaging society as a whole. Our country is in danger as societal faith in all our institutions is at an all-time low. Sadly, our Florida Supreme Court only exacerbates this peril.

© George J. Felos, 2024