Time to worry about reproductive rights

Left on the cutting room floor of the Florida Constitution Revision Commission this year was a radical attack on the privacy provision that would protect reproductive choice in Florida, no matter what happens to Roe v. Wade, the 1973 Supreme Court decision that established abortion rights nationwide.

But make no mistake. The assault on privacy will resurface in the Florida Legislature if President Trump nominates someone to the Supreme Court who wants to upend Roe, the monumental decision that — within limits — established abortion as a privacy right guaranteed by the U.S. Constitution.

And if there is one promise the president fears to break, it is his pledge to repeal Roe v. Wade. It won him decisive votes from religious conservatives during the campaign, and explains why so many continue to ignore or excuse his unholy behavior.

This is what Trump said about the Supreme Court during his third debate with Hillary Clinton.

"If we put another two or perhaps three justices on, that will happen. And that will happen automatically, in my opinion, because I am putting pro-life justices on the court.”

As he prepares to announce his second Supreme Court nominee on Monday, however, the president is saying something different. He’s saying he won’t ask the candidates about Roe.

Is Trump trying to prepare the faithful for a shattering disappointment? Almost certainly not. Rather, he means to flummox the opposition and give cover to conflicted senators like Susan Collins of Maine, who sounds equivocal in her commitment to reproductive choice.

It’s the same beguiling theme the Wall Street Journal employed in an editorial this week, mocking what it called “the liberal line … that Roe hangs by a judicial thread.” Liberals need not worry, the paper said soothingly, citing “the power of stare decisis,” the principle that courts must respect precedent. Said the spider to the fly. For Floridians who care about reproductive choice — no matter the added privacy protection in our state Constitution — this is a time to be worried, and to keep your guard up, not down. Here’s why: Under Chief Justice John Roberts, the court has demonstrated an emphatic disregard for precedents. It threw aside two in the Citizens United decision that sacrificed American politics to the unlimited influence of big money. It discarded precedents again last month in allowing states to collect sales taxes from out-of-state retailers, and in ruling that non-members can refuse to pay dues to public employee unions that negotiate on their behalf.

Departing Justice Anthony Kennedy was the swing vote in all three. But Kennedy also was the decider in Planned Parenthood v. Casey, which rescued Roe by essentially redefining it. Given who’s selecting his replacement, it’s safe to presume the nominee will be hostile to the fundamental principle in Planned Parenthood and Roe and seize an opportunity to renounce them.

The court could also undo both without saying so. It could, for example, redefine viability — however perversely — along the lines of a new Iowa law that would ban abortion beyond the point at which many women even know they are pregnant. And the two leading Republican candidates for Florida governor, Rep. Ron DeSantis and Agriculture Commissioner Adam Putnam, both support the “heartbeat bill,” which would ban abortion once a heartbeat can be detected.

Trump doesn’t need to ask what the candidates think about Roe, Planned Parenthood or abortion in general. They have decisions or scholarly writings that leave clues. Before Trump sees the finalists, they have been vetted thoroughly by his staff and by the Federalist Society, the conservative lobby to which he has effectively outsourced his judicial picks.

No matter what happens to Roe v. Wade, Florida is a special case.

In 1980, the Legislature and voters approved an amendment to the state Constitution that gives “every natural person … the right to be let alone and free from governmental intrusion into the person’s private life.” In 1989, the Florida Supreme Court applied this to abortion when it struck down a parental consent law. The Legislature and voters later amended the Constitution to allow a parental notification law. Still, the court’s finding that Florida has “a strong right of privacy, not found in the federal constitution … much broader in scope” still stands.

This year, however, Trump’s election encouraged the religious right to make a serious attack on Florida’s right to privacy. It surfaced in the Constitution Revision Commission, which meets every 20 years with authority to send amendments directly to the ballot.

An amendment proposed by a commission member who heads the anti-choice Florida Family Policy Council would have limited the protection to “privacy of information and the disclosure thereof.” That would have extinguished abortion rights and a great deal more. It cleared one committee but died in a second. Every vote for it was cast by commission members appointed by Gov. Rick Scott and House Speaker Richard Corcoran. It was defeated by the Florida Supreme Court’s three appointees and one of Senate President Joe Negron’s.

Of equal concern is what the Florida Supreme Court might do once its three liberal justices who are older than 70 must retire next January. Whether Scott or his successor has the power to appoint them is in dispute, but every nominee will have been selected by Scott’s nominating commission.

No matter the state Constitution, Roe v. Wade still matters greatly in Florida, as throughout the nation.

And reproductive choice isn’t the only liberty that’s twisting in the wind. Economic conservatives also hope for a court that will strike down any remaining laws that favor labor, consumers or the environment — laws that benefit many of their unwitting allies on the religious right.

Jeffrey Toobin, the legal scholar who writes articles and appears on CNN, framed the danger in a New Yorker essay.

The president’s new majority, he wrote, “will overrule Roe v. Wade, allowing states to ban abortion and to criminally prosecute any physician and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-Americans and Latino students attend elite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks…

“And these are just the issues that draw the most attention.”

This is a profoundly important appointment, one that could set the court’s course — and the nation’s — for a generation. In these times, we have a president who disrespects an independent judiciary as much as he detests a free press. There is suspicion that he manipulated Kennedy’s retirement with his own political skin in mind.

Let the Senate remember that the Supreme Court exists to protect the Constitution and serve all the American people, not just some of them.

So does the Senate itself. Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O'Hara, Andy Reid and Editor-in-Chief Julie Anderson.