Opinion | Caroline Mala Corbin: In Florida, the new 15-week ban will collide with the state’s constitutional protection of a woman’s right to end her pregnancy. - NBCNewsTHINK
to five out of the seven on the Florida Supreme Court. In short, like the U.S. Supreme Court, the Florida Supreme Court has taken a sharp turn to the right.
Still, while the U.S. Supreme Court may argue that the U.S. Constitution nowhere specifically mentions any right to privacy, the same argument is not available to the Florida Supreme Court. Instead, any decision eliminating a state protection for abortion must explain why the explicit “right to be let alone and free from governmental intrusion into the person’s private life” does not cover the very private decision to end a pregnancy.
Consequently, while anti-abortion laws may sail through the legislatures, abortion-rights advocates should take some comfort in knowing that the laws will encounter obstacles. Just as power is divided vertically between the federal and state governments, power is also divided horizontally among the different branches — legislative, judicial and executive — of the state government.
State legislatures may willfully ignore their state constitutions, and governors may be happy to go along. State courts, on the other hand, whose power rests with striking down the unconstitutional actions of the other two branches and whose legitimacy rests on reasoned interpretation of those state constitutions, may not.
Granted, there is often wiggle room in interpreting a constitution. In fact, a lower Florida court recently ruled that a 24-hour waiting periodto privacy since women were still able to obtain an abortion. The same cannot be said for a ban on abortion. In Florida, upholding a pre-viability ban would require a state supreme court even more unprincipled than the U.S. Supreme Court.Caroline Mala Corbin is a professor of law and Dean’s Distinguished Scholar at the University of Miami School of Law.
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