Privacy rights ballot measure would affect abortion laws

TALLAHASSEE — Led by a social activist from Orlando, the next clash in Florida over abortion could be headed to the ballot box.

A measure under consideration by the Constitution Revision Commission, a panel that meets every 20 years to propose changes to the state’s government framework, would limit privacy rights.

Abortion-rights groups say the change would make it easier to restrict abortion because the courts have used Florida’s broad privacy rights to stop laws aimed at limiting the procedure in recent years, including laws that have been upheld in other states.

“It would open the floodgates to regulate abortion out of existence,” said Howard Simon, executive director of the American Civil Liberties

Union of Florida.

In 1980, voters approved a measure expanding privacy rights in the state constitution. Article 1, Sec. 23 states that, “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.’’

During a Tuesday meeting, CRC commissioner John Stemberger proposed moving forward with the amendment to apply the law only to “information and the disclosure thereof.”

Stemberger also is president and general counsel of the Orlando-based Florida Family Policy Council, a social conservative group that opposes abortion. He said the original purpose of the privacy provision was only related to privacy and courts are misinterpreting it by applying it to abortion laws.

“In all the campaign literature that the people saw in 1980, the focus was informational privacy,” Stemberger said. “It restores the amendment to the intent of the drafters and the Legislature and the people that adopted it.”

The implications for abortion laws could be huge. Earlier this year, the Florida Supreme Court upheld an injunction against a 2015 state law requiring women to wait 24 hours before getting an abortion. Similar laws have been upheld in several other states, some with waiting periods of up to 72 hours.

“Any law that implicates the fundamental right of privacy, regardless of the activity, is subject to strict scrutiny and is presumptively unconstitutional,” wrote Justice Barbara Pariente in the 4-2 decision.

The ruling sent the case back to a lower court, where it is pending.

Other abortion laws, such as requiring an ultrasound and providing parental notice when a minor gets an abortion, have been revised in the face of the privacy rights clause, Goodhue said. Minors can get permission from a judge to avoid the parental notice, and women aren’t required to look at the ultrasound picture as they are in other states.

“I also think it’s just a deterrent,” Goodhue said.

But Stemberger downplayed the effect of the proposal, noting that abortion rights would still exist under Roe v. Wade.

“There are many reasons why the court needs to be restrained because the court’s just ignoring why the amendment was adopted,” Stemberger said. “The only unique thing about the amendment is really informational privacy.”

Stemberger’s plan still has a long way to go before it could become part of the Constitution, however.

His measure will be considered by CRC committees and could go before the full commission for a vote next spring. If approved, it would go before voters on the November 2018 ballot.

But to make it into the constitution, 60 percent of voters would have to approve it, a high bar for such a divisive issue in a swing state.

“I think folks need to hear the argument,” Stemberger said. “I think we’ve heard more [from the public] about this issue than any other issue, it’s certainly in the top three.”