Abortion, Originalism, and the Privacy Clause: What the Supreme Court of Florida Got Wrong in Planned Parenthood v.

[In It to Win It]

https://stetsonlawreview.org/article/abortion-originalism-and-the-privacy-clause-what-the-supreme-court-of-florida-got-wrong-in-planned-parenthood-v-state/

The Supreme Court of Florida recently decided Planned Parenthood of Southwest and Central Florida v. State of Florida, where it upheld the state law banning abortion after fifteen weeks. To get there, the court had to recede from decades of precedent like In re T.W. (1980), which held that the Florida Constitution’s explicit and broadly worded right of privacy included the right to an abortion. The core of the court’s decision is an application of originalism, specifically public meaning originalism. Under this method of constitutional interpretation, a court seeks the original meaning the text most likely would have had to a reasonably well-informed speaker of the English language at the time it was adopted. Public meaning originalism does not seek the subjective intent of the drafters. According to the court, when Florida’s voters adopted the Privacy Clause in 1980, they would not have understood the Privacy Clause to encompass abortion. This is not a defensible application of originalism. Starting with the text, the court imposed an unjustifiably narrow interpretation on the Clause’s broad language. Then, the court left out half of the language’s technical or acquired meaning in Florida law, which by 1980 had established legal meanings encompassing the right to abortion. Importantly, the court underestimated the effect of Roe v. Wade (1973) on the public’s understanding of the right of privacy generally and the Clause’s language specifically. Especially after Roe, association of the Clause’s language with abortion were widely disseminated and received by the public when it approved the Clause. But the court distorted the public debate and constructed an incomplete and improper historical account that focused solely on drafter intent. Finally, the court failed to address constitutionally significant events after 1980, which showed that the people of Florida settled the meaning of the Privacy Clause to include the right to abortion. Under accepted principles of public meaning originalism, there was more than sufficient evidence to prove that the reasonably well-informed Floridian in 1980 most likely understood the language used in the proposed Privacy Clause to encompass the right to abortion. The court wrongly concluded otherwise.

Officially published: “Abortion, Originalism, and the Privacy Clause: What the Supreme Court of Florida Got Wrong in Planned Parenthood v. State,” Stetson LR.

My comprehensive refutation of the major conclusions in the court’s opinion holding our Privacy Clause doesn’t protect abortion access.

— Adam Richardson (@ajrichar.bsky.social) 2025-10-12T15:50:32.164Z