The governor candidates aren’t mentioning it much, but a woman’s right to choose is now a major campaign issue

pro choice advocates
Pro-choice advocates at Florida's Capitol this summer. Photo by Mitch Perry

The race to succeed Rick Scott as governor in Florida has at times veered into issues that are more likely to be addressed in Washington D.C. than in Tallahassee. Republican candidate Ron DeSantis talks about immigration and Democrat Andrew Gillum touts  Medicare-for-all. It’s unlikely that either man would have much influence carrying out those policies since those are federal matters.

There is one issue rarely raised on the campaign trail that could very well be influenced by the incoming governor – abortion rights.

On Monday, the Florida Supreme Court ruled that whoever is elected as Florida’s new governor Nov. 6 will have the right to choose new jurists to replace three liberal-leaning state justices who are retiring.

“No one is talking about this right now,” Tampa U.S. Rep. Kathy Castor said last Friday, before the court made its ruling. “They’re talking about clean water, about education. But we know that there are the powers that be that would really like to end women’s legal access to health care and abortion.”

The stakes were incredibly high in the recent U.S. Supreme Court confirmation of Brett Kavanaugh, with abortion rights on the line. Florida’s process for picking new state Supreme Court justices could be nearly as contentious.

In recent years, the Republican-led Legislature has passed a number of measures that would make it more difficult for a woman to access an abortion in Florida. But they’ve all been rejected by the Florida Supreme Court, which has invoked the privacy clause in the Florida  Constitution to back up its rulings.

If Republican DeSantis won the election, the court’s makeup could swing to the right. That’s because Justices Barbara Pariente, Peggy Quince and Fred Lewis, all liberal leaning, are required to step down in January because they have met the mandatory retirement age of 70.

Republican Gov. Rick Scott argued that he should be the one to pick the new justices as he leaves office due to term limits. But two groups went to court to oppose that – the League of Women Voters of Florida and Common Cause.  On Monday, they won their case when the Supreme Court ruled that Scott “exceeded his authority” when he started the process of picking new justices.

John Mills is the attorney representing the League of Women Voters and Common Cause in the case. He argued that the Florida Constitution says that the governor has 60 days to fill a vacancy, which doesn’t begin until the judge in question leaves office. That timeframe would prevent the term-limited Scott from picking the justices.  In its Monday ruling, the high court agreed.

“I am pleased the Florida Supreme Court has brought closure to this important issue finding, as we have consistently stated, that the next Governor of Florida will appoint the next three Supreme Court justices,” Gillum said in a statement. “It is a duty I take extremely seriously and, as Governor, one of my top priorities will be to restore integrity to the judicial nominating process.”

Republican Party of Florida Chairman Blaise Ingoglia warned in an email to Florida Republicans that the liberal Gillum “would appoint radical, activist justices who would legislate from the bench and work to eliminate school choice, erode pro-life principles and impose big-government ideology on our state” and added “Ron DeSantis is an attorney, Iraq veteran and former Navy JAG officer who knows the importance of appointing strong constitutionalists to the bench.”

Phil Padavano is a retired appellate judge in Florida. He says the issue of selecting jurists has become more political in recent years.

“The whole thing is to make an appearance of neutrality, it’s not neutral at all,” he says.

In Florida, judge applicants are run through a process made up of political appointees, sitting together as Judicial Nominating Commissions. Before Monday’s Supreme Court ruling, Scott had already asked his appointed Judicial Nominating Commissions to forward lists of possible Supreme Court justice candidates. Those nominations – 59 conservatives – are now in limbo and subject to possible further legal action.

While legal issues remain, on a political level, nobody disputes the idea that a more conservative-leaning Supreme Court could view Florida’s right to privacy laws very differently.

“This is a huge, huge issue,” says Kim Scott, director of public policy for Planned Parenthood of Florida. “We’ve seen Rick Scott and Ron DeSantis, and both of them have anti-reproductive health records, and we don’t believe that they stand with women’s health, and we don’t trust anyone that they would nominate to the bench that would pursue trying to overturn the right to privacy section that does indeed protect access to abortion services.”

Anti-abortion activists have repeatedly come up short in trying to eliminate the right-to-privacy clause in the state’s Constitution – the latest time happened earlier this year. That’s when the once-every two decades Constitution Revision Commission considered a proposal that critics say would have eroded the privacy clause. A proposed Constitutional amendment was offered by Christian conservative John Stemberger, a fierce abortion opponent, but it was ultimately rejected by the 37-member commission.

Abortion foes also tried to whittle away the right to privacy in 2012 with proposed Florida Constitutional Amendment 6, which would have enshrined the federal ban on tax money for abortions into the state Constitution. The change would have weakened privacy protections for women who want to terminate a pregnancy, and would have imposed a requirement that minors get parental consent before an abortion.

“There has been a shifting of what the word ‘privacy’ means, and that shift has been towards a more liberal policy towards allowing abortions,” charged Roger Gannam, assistant vice president of legal affairs for the Liberty Counsel, an Orlando-based evangelical Christian organization.

In addition to the right of privacy, Republican state legislators have expressed frustrations over a number of other proposals that they’ve seen thwarted by the high court over the years: the right of people to sue to hold companies accountable, medical malpractice reform and evidentiary standards are just some of those issues, Republican state Sen. Tom Lee says.

Gannam, of the conservative Liberty Counsel, points out that the three new Florida Supreme Court justice appointments “will have big implications for the future, probably for a few decades.”




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