A Historical and Originalist Defense of Abortion in Florida

Rutgers University Law Review, Vol. 75, No. 2, pp. 393-453 (2023)

61 Pages Posted: 22 Sep 2022 Last revised: 30 May 2023

See all articles by James W. Fox

James W. Fox

Stetson University - College of Law

Date Written: May 30, 2023

Abstract

In this article I present an historical/originalist defense of abortion rights under the Florida Constitution’s right of privacy provision, which was adopted in 1980.

The Florida Supreme Court faces a conflict between what are likely its pro-life proclivities and originalism. Through original research into the drafting of the right to privacy provision in the 1970s and a detailed review of press coverage of privacy issues leading up to its adoption in the election of 1980, this article presents an in-depth analysis of whether the original meaning of the privacy provision encompassed abortion rights. It focuses on how the right to abortion was well-known to be a core part of pre-existing legal meaning of the right of privacy as of 1980, and argues that Justice Overton, one of the provision's original drafters, was correct in 1989 when he said the privacy provision codified Roe.

In addition to addressing a current conflict in the Florida courts, this article also suggests possibilities for applying originalism to a modern, state constitutional provision, stakes out arguments for why originalism may be appropriate in that context even if it is not appropriate in the context of older provisions of the U.S. Constitution, and explores the concept of pre-existing legal meaning as applied in a right-expanding context. The article proposes an approach where pre-existing meaning, including expected applications, help form a baseline-plus approach to interpreting rights-protecting provisions. Under this approach, the right of privacy provision protects a baseline of rights, including reproductive rights, determined through traditional historical and originalist methods (including expected applications originalism) even as it may be open to expansion by courts in the future to other, unanticipated, rights claims.

Note: the paper posted as of June 2023 is the published version, which was finalized in late April 2023. For questions about the draft that was previously available here, please contact the author.

Keywords: right to privacy, abortion, Florida Constitution, state constitutions, originalism

Suggested Citation

Fox, James W., A Historical and Originalist Defense of Abortion in Florida (May 30, 2023). Rutgers University Law Review, Vol. 75, No. 2, pp. 393-453 (2023), Available at SSRN: https://ssrn.com/abstract=4224718 or http://dx.doi.org/10.2139/ssrn.4224718

James W. Fox (Contact Author)

Stetson University - College of Law ( email )

1401 61st St. South
Gulfport, FL 33707
United States
727-562-7890 (Phone)

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