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Plan To Narrow Privacy Right Involving Abortion Rejected

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

A state panel Thursday defeated a proposal that sought to narrow the right to privacy in the state Constitution and allow increased regulation of abortions.

In a 4-2 vote, the Judicial Committee of the state Constitution Revision Commission rejected a measure (Proposal 22) from Commissioner John Stemberger of Orlando that would have changed the Constitution to say people have a right to be free from governmental intrusion “with respect to privacy of information and the disclosure thereof.”

Stemberger has objected to state courts using the privacy clause to overturn a law requiring parental consent for minors seeking abortions and to negate another law requiring a 24-hour waiting period for women seeking abortions.

He says his proposal was aimed at “restraining the Florida Supreme Court’s gross overreach by ignoring the original intent of the amendment and producing, what I believe, is very bad public policy as a result.”

After researching a privacy proposal drafted by the 1977-1978 Constitution Revision Commission and legislation in 1980 that led to the amendment, which was adopted by 61 percent of the voters that year, Stemberger says he could find no record that drafters had intended it to apply to abortion and other personal issues outside of informational privacy.

“You can look for days and find nothing on the record relating to abortion or any other area of privacy, except for informational privacy, surveillance, the encroachment of government when it comes to technological advances,” he says.

But Jon Mills, a former Democratic lawmaker from Gainesville and former University of Florida law school dean who helped write the 1980 measure, says other applications of the privacy amendment were discussed, although it may not necessarily be part of the official record.

“There was an understanding that this was not just information. That’s my recollection,” he says.

Mills also said the amendment established a broader right to privacy in Florida than in the federal Constitution, and it should be retained due to the “undefinable future” of federal regulations and decisions.

“We have a state right that accords additional rights to our citizens,” Mills says. “There’s no question that if we limit that only to informational privacy that that would reduce existing rights under the Florida Constitution.”

The proposal split the Judicial Committee members.

Sen. Tom Lee, a Thonotosassa Republican who voted for the proposal, says he believed voters should be given another chance to consider the issue.

“Questions surrounding the rights of parents in our state have been impaired somewhat by this amendment, arguably tangentially,” Lee says. “We ought to give the voters an opportunity to reconsider this.”

But Commissioner Arthenia Joyner, a former state senator from Tampa, who voted against the measure, ays it would be a mistake to scale back Florida’s privacy right.

“This proposal has one purpose and one purpose only: to strip a woman’s right to choose,” Joyner says. “It does so by cutting our state’s personal privacy protections, the ones that stand in the way of government overreach and intrusion.”

Commissioner Tim Cerio of Tallahassee voted for the proposal, although he says he was somewhat skeptical of the argument that the original intent of the amendment was limited to informational privacy.

But he also says the language of the existing amendment is so broad that it puts judges in the position of having to act like lawmakers in trying to apply the measure.

Commissioner Roberto Martinez of Coral Gables opposed the measure, saying he is staunch supporter of personal privacy rights.

“I believe the right to privacy in Florida is an extra protection that the public should have and does have and it extends beyond informational privacy,” Martinez says.

He said altering the existing privacy clause would subject Floridians “to a higher possibility of governmental intrusion into their private lives and that includes medical decisions and the right to receive an abortion.”

Although the committee defeated the proposal, Stemberger has the option of trying to revive the measure once the full 37-member Constitution Revision Commission meets. Under the commission’s rules, a majority vote by the commission would keep the proposal under consideration.

Stemberger said Thursday he would consider that option.

The commission, which meets every 20 years, has the power to place constitutional amendments on the 2018 general election ballot. At least 22 members of the commission must support a proposal before it can reach the ballot.

Ballot measures must be approved by at least 60 percent of the voters to be enacted.