By compelling a woman to continue her pregnancy, Florida denies women exactly the kind of privacy it says its Constitution protects.
Florida’s Supreme Court recently upheld the state’s law banning abortion after 15 weeks of becoming pregnant. Not surprisingly, news coverage and commentary about the decision focused on abortion and the fact that the effect of that ruling was to allow a six-week ban to go into effect. Far from being a decision limited to abortion, however, it is one that should shock the conscience of anyone who believes that women, and all those with the capacity for pregnancy, have a right to privacy.
That right is specifically protected in Article 23 of Florida’s Constitution. Adopted by Florida voters in 1980, it states: “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.”
Nowhere is it “otherwise provided” that womanhood, pregnancy or the capacity for pregnancy are exceptions to protection from governmental intrusion into a “person’s private life.” Nevertheless, Florida’s Supreme Court concluded that the people who become pregnant have no right to be let alone from Florida’s laws banning abortion care.
Purporting to carry out an objective evaluation of the words used in Article 23 the court erases the experiences and ultimately the privacy rights of the all Floridians who have the capacity for pregnancy.
The court begins its analysis by observing that Article 23 does not have the word abortion in it. Next, the court correctly points out that the word abortion is not included in definitions of the word privacy or in explanations of the term “to be let alone.”
Noteworthy, however, are some of the other words that do not appear in definitions of these terms. Among these are: vagina, vulva, uterus, menstruation, tampons, pregnancy, miscarriage, stillbirth, birth, pelvic exams and yeast infections. Nor do they include many other words typically associated with privacy, such as sexuality, venereal disease and colonoscopy. According to the court’s sophomoric logic, all things associated with the human body (regardless of gender) could be excluded from the state’s privacy protections because they are not specifically named.
The court, however, does not rely on definitions alone. It also concludes that “the public that voted to amend the Constitution to include the right to privacy” would not have understood at the time it was ratified “that it encompassed the right to an abortion.”
This is despite the fact that in 1973—seven years before the amendment was ratified—the U.S. Supreme Court held in Roe v. Wade that “the right of personal privacy includes the abortion decision.”
As the lone dissenter to the Florida opinion wrote: “During the seven-year interval between Roe and Florida voters’ adoption of the right of privacy, I find it inconceivable that Americans and, more specifically, Floridians, were not aware that the right of privacy encompassed the right to an abortion.”
It is also incredible that the court interprets the right to be let alone in a way that excludes abortion and the people who have them. The court explains this phrase as one that protects “the right to live in a community without being held up to the public gaze.”
But, Florida’s abortion ban will force women to continue their pregnancies and become subject to exactly what the right to be let alone is supposed to protect against: public gaze. As pretty much every pregnant woman has experienced, once her pregnancy shows, she will be subject to public comment as well as strangers who feel entitled to touch her pregnant belly. In other words, by compelling a woman to continue her pregnancy, Florida denies women exactly the kind of privacy it says its Constitution protects.
It is also hard to believe that Floridians would not have understood the relationship between abortion and the kinds of privacy rights the Florida Supreme Court now claims Article 23 was intended to address. According to the court, Article 23 has to do only with concerns about “informational privacy” and “government surveillance” and not abortion.
But Shirley Wheeler’s highly publicized 1971 arrest and prosecution for having an illegal abortion in Florida would have made clear to Floridians the connection between abortion and even these limited kinds of privacy rights.
After Wheeler went to a hospital for complications from the illegal abortion, police interrogated and then arrested her. Following a trial that relied on evidence about her pregnancy, her intimate personal life and information from her medical records, she was convicted of manslaughter and faced a sentence of up to 20 years imprisonment. The court sentenced her to two years of probation, including the condition that she either marry the man she was living with or return to her home state to live with her parents.
The Florida Supreme Court’s refusal to believe that the public would have understood in 1980 that the right to privacy would protect all persons—including those who get pregnant and have abortions—can only be attributed to the court’s willful decision to deny this right to pregnant women.
Indeed, the Florida Supreme Court comes very close to declaring that once pregnant, the right to privacy is simply not relevant. As the court explained, Florida’s “right to be let alone” does “not permit an individual to inflict harm on herself or others,” specifically noting that Florida’s “Privacy Clause jurisprudence … does not authorize harm to third parties.”
While the court does not directly address the question of whether fertilized eggs, embryos or fetuses are “third parties” or “others,” four of the seven justices, in a different case decided the same day, indicated that they might interpret the state Constitution to treat “the unborn” as separate legal persons.
In the end, Florida’s Supreme Court did far more than uphold a ban on abortion: It laid the groundwork for denying pregnant women the right to privacy and their status as full persons under Florida’s Constitution.
Up next:
U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.
