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Invasion of privacy, part 1: There is no "pro-life" movement. There is only forced birth; at how many weeks?
Friday's Supreme Court hearing suggests "pro-lifers" want nothing to do with the total forced birth war they've started against 75% of Florida. I think they're secretly rooting for the referendum.
Here is part 2 of this two-part series.
Invasion of privacy, part 2: Kate Walton's notion of "individual sovereignty" rejects 6-week forced birth - and much more
Through an odd twist of circumstance, I found myself attending Friday's Florida Supreme Court hearing on whether Florida’s voter-approved constitutional amendment protecting “privacy” continues to include the right to end a pregnancy. The case is called Planned Parenthood of Southwest and Central v. State of Florida.
I think the hearing went badly for both 6-week forced birth bill sponsor Jennifer Canady and her husband Charles’ Supreme Court. Charles was one of three justices who said nothing. Jennifer didn’t show. That’s a pretty far cry from her triumphantly loving gaze at Ron DeSantis on the night he signed her bill.
My perceptions won’t affect the ruling. This was a rigged hearing, as everyone on all sides knew from the start, a kangaroo court in which the tangible outcome is pre-ordained. As everyone knows, the state and the court are allied in abstract politics, ideology, and theory on imposing forced birth. The Federalist Society power club does not permit deviation from its automaton justices. You don’t ever get to the cool billionaire yacht trips if you do.
Whenever the court rules against Planned Parenthood, Florida will suddenly have have mass forced birth at six weeks, which means total forced birth without any workable exceptions.
However, now that we’re leaving behind abstraction and getting down to real, mass forced birth, with vast human consequences, neither the state nor court knows how to justify it to the public legally or morally. Polls show 75 percent of Floridians, including 51 percent of Republicans, oppose force birth at 6 weeks, which is exponentially more brutal than forced birth at 15 weeks.
And the state and the court alike seem eager to duck responsibility for the bloody operational shit show and human casualties that will ensue when the court finally rules.
No way out
It was clear to me that the justices had a carefully pre-planned strategy for questioning Planned Parenthood lawyer Whitney L. White in a way that broke up what she had planned to say. But she handled it deftly, I thought. By contrast, both the Court’s questioning and the response arguments got very ragged when the unimpressive state Solicitor General Henry C. Whitaker stepped up. The justices made life much more unpleasant for him than for White (shown below) — who I thought wiped the floor with Whitaker and the justices alike.
Again, none of this matters for the practical outcome. At some point, we’re going to have forced birth at 6 weeks, imposed by the Canady marriage dictatorship and others. Timing and reasoning of the opinion, not what it orders, are the big important questions, medically and politically. And there are no good options on either question — for either the state or the court, which I think both have now realized.
Indeed, I would say none of the four justices who asked questions seemed excited about defining “privacy” in way that creates any precedent.
Justices Jamie Grosshans and Meredith Sasso seemed eager throw out the lawsuit on technical legal grounds like standing. They practically begged Whitaker to give them a standing argument to run with. He would not. And honestly, it really doesn’t seem like there’s much of a standing argument to make. Planned Parenthood lawyer White gently slapped the standing argument around in her rebuttal argument.
Solicitor General Whitaker, in turn, all but begged the court to rule on the merits of whether privacy includes the right to be free from unreasonable forced birth requirements. Whitaker entreated the court that Florida’s forced birth jurisprudence “cries out for resolution on the merits.” (More on the “resolution” delusion in a second.)
But four of the the justices clearly don’t want to rule on the merits of mass forced birth at state gunpoint in the context of the state’s constitutional privacy protections. Rather, I think Friday’s hearing was a game of legal, intellectual, and moral chicken among “pro-lifers” aimed at deciding which of them gets the blame in posterity for imposing actual forced birth.
But that game is irrelevant. It’s too late for anyone to avoid blame for posterity.
No one will care that Meredith Sasso and Jamie Grosshans imposed total forced birth on a “standing” technicality. They should stop kidding themselves. I don’t know how to read the silence of Justices Charles Canady, Jorge Labarga, and Renata Francis; but maybe it indicates they understand that much, at least. Maybe they’re just planning to pull the trigger without excuses and whiny justifications.
No tools for defining privacy
Furthermore, I thought I could see the court, particularly Chief Justice Chief Justice Carlos Muñiz, start to realize that enforcement of 6-week forced birth will run much more afoul of the privacy constitutional amendment than even attacks on the sub-textual positive right to abortion it has included until now.
Muñiz got openly frustrated with Whitaker for demanding a ruling on the merits while refusing to clearly define what the state government thinks “privacy” actually protects. “Other than a dictionary, what are the tools” justices should use to define privacy? Muñiz asked Whitaker with some exasperation.
Whitaker didn’t give him any — beyond a hopelessly broad distinction between “informational” privacy and “decisional” privacy. In the stupidest moment of the hearing, Whitaker seemed to argue that “infanticide” and “spousal abuse” are legal “personal decisions” currently protected by the privacy amendment’s protection of abortion rights. Really, he did. Watch. If the court does not strike down the “decisional” definition of privacy, Whitaker argued, we’re in for a state wave of legal infanticide and spousal abuse.
Whitney White, Planned Parenthood’s lawyer, very professionally dunked on that stupid argument in her rebuttal, pointing out the self-evident: nowhere, including Florida, has protection from forced birth led to legal protection of infanticide or spousal abuse.
We’ll dive into the information v. decision privacy issue in part 2, using my beloved Great Aunt Kate Walton. She just so happened, as a plaintiff’s lawyer, to establish Florida’s common law (not constitutional) right to privacy in 1944 in the almost famous Marjorie Kinnan Rawlings invasion of privacy lawsuit.
Is mandatory state registration of your pregnancy an intrusion of privacy? How about a police death investigation of your miscarriage?
If I was a Supreme Court justice, I would have asked Whitaker if the state considers a mandatory government pregnancy registry an unconstitutional intrusion on privacy. If privacy is the “right to be let alone,” does mandatory death investigation of every miscarriage violate that right?
Think about it.
How will anyone know if a pregnancy is terminated in Florida when 6-week forced birth essentially outlaws abortion entirely? Hospitals will not track illegal acts by their patients and doctors. So the state government will have to find them.
It will have to impose official state government pregnancy tracking, for every woman, whether you terminate your pregnancy or not. If you’re pregnant and then you’re not, the state will demand an explanation, based on its compelling interest in forced birth. “Compelling interest” was the term Justice John Couriel used repeatedly in the most aggressive questioning of White.
How will the state know you’re pregnant? You or your doctor will have to tell them with some kind of registry. If a fetus is a person, you will be subject to a police death investigation of every miscarriage.
If you, forced birther, are not willing to accept that logic, then don’t hand me your fake bullshit about life beginning at conception. I. don’t. want. to. hear. it. You don’t believe it.
The enforcement regime of 6-week forced birth intrudes on personal sovereignty — on “privacy” — in vast, endless ways. It must do that if the forced birthers are at all serious. So this won’t be the last legal privacy challenge, not even close. The court isn’t being asked to strike down the privacy amendment itself, which, of course, it has no power to do. It’s just being asked to decide if privacy includes abortion rights. Even if it says no, it will be asked, again and again, about forced birth enforcement.
And every legal conflict over forced birth does political damage to the people imposing the Canady marriage dictatorship’s 6-week forced birth on the 75 percent (or higher) of Floridians who don’t want it.
However, I’ve yet to see any sign that any “pro-lifers” are actually serious forced birthers. I see no indication they’ve thought systemically, at all, about how to marshal the state violence, surveillance, and oppression it’s going to take to impose 6-week forced birth operationally on Florida women. And don’t even ask about mitigating the harm their empty language creates through blasted out maternity care.
I will probably lose my bet with John Stemberger
I did ask John Stemberger, sort of the legal godfather of Florida’s forced birth movement, about the privacy implications of 6-week forced birth enforcement. We were introduced to each other while waiting on the Supreme Court steps for the court to open; and we had an interesting and pleasant chat.
I asked him what the privacy amendment does protect if it doesn’t protect abortion rights. And he launched into a well-rehearsed spiel about President Jimmy Carter’s focus on privacy built around wiretapping and government intrusion in the aftermath of Watergate. Florida’s 1980 amendment emerged from that context, he argued. It wasn’t about protecting abortion, Stemberger said, it was about investigative and surveillance overreach by law enforcement and government.
To which I said, “The government is going to have to track every pregnancy. That’s not an invasion of privacy?”
Stemberger had been speaking confidently and quickly in easy rhythm. But he greeted that question with silence. A few seconds later someone interrupted us; and I never got an answer.
But Stemberger and I did make an interesting bet before the hearing. I bet him a nickel that the Supreme Court would toss out the anti-forced birth referendum aiming to essentially restore Roe on the 2024 ballot. Jason Garcia and I were speculating on that likelihood in our podcast this week.
Stemberger, who said he knows five of the seven justices personally, argued they would not throw out the referendum language. Stemberger himself said the language of the proposed amendment is not misleading — and the justices would have no legal reason to throw it out. I responded that they don’t need a legal reason — only the power to do it. He said they’re not that cynical.
I said let’s bet.
But after watching the hearing, and just picking up the strange, non-triumphal, non-circus vibe of the entire day, I think Stemberger may be right — but for a very very cynical reason.
Pro-lifers rooting for the referendum
Losing the referendum is the only way out for “pro-lifers” who lack the stomach to become serious forced birthers. It’s the only way to avoid admitting they’re wrong on the moral merits, to avoid admitting that “life begins at conception” is glib nonsense they’ve never actually believed.
Stemberger himself told me he fully expects Florida forced birth policy to be settled once and for all by a titanic referendum in 2024 pitting Roe protections vs. 6-week forced birth.
That is the best possible political scenario for referendum organizers; and Stemberger, the head of the Christian conservative Florida Family Policy Council, seems just fine with it.
Maybe Stemberger is comfortable that the referendum won’t get to 60 percent — and that a 59 percent vote for return of Roe would finally settle the forced birth question in his favor. But that’s delusional; and Stemberger does not strike me as a delusional guy.
Six-week forced birth will only ever be resolved by its elimination. We’ll keep having titanic confrontations if the 2024 referendum narrowly fails. There’s no way it does worse than 58 or 59 percent, in my humble prediction. That kind of margin on such a consuming moral and political issue will lead to additional legislative politics. I would expect, at minimum, a legislative move back to 15 weeks at some point, even under GOP rule.
I have yet to meet any GOPer in Polk — and I’m talking fire-breathing right wingers, too — who will make any affirmative argument on behalf of forced birth at six weeks. Most openly oppose it.
Forced birth kills “pro-life”
Justice Couriel tried to argue, through his questioning, that the Court should defer to the Legislature as the authentic democratic will of the people, not the referendum on privacy that the people approved democratically with 60 percent of the vote in 1980.
That argument shows how important Jennifer Canady’s forced birth policy lies were in her campaign. The public did not know she would aggressively sponsor 6-week forced birth because she misled the public, even under repeated questioning from me and others. So her 6-week forced birth bill does not, in any conceivable way, reflect the will of her constituents, who she does not respect enough to tell the truth. In no way was her election a local referendum on forced birth at 6-weeks.
Today, Canady is not planning or leading or taking any public responsibility for the vast implementation work her dishonest bill requires. She’s just hiding. In that sense, she is perfect embodiment of a cocky, mean “pro-lifer” who lacks the moral courage or seriousness to do the brutal public work of forced birth.
Indeed, the relative handful of forced birth supporters who showed up to Friday’s hearing felt like an anachronism with their 1992-style “Choose Life” bullshit slogan tee-shirts.
None of them seem willing or able to make the transition from the fun of being fake “pro-life” to the brutal wet work of real forced birth.
It’s one thing to happily scream “whore” at a rape victim walking into a legal abortion clinic; it’s another thing entirely to build the intrusive government infrastructure for tracking every pregnancy, investigating every miscarriage, and punishing every woman who illegally ends a pregnancy.
It’s one thing to sick Grady Judd on a woman who tossed a pair of balled up panties near a deputy, like 6-week forced birth queen Jennifer Canady did. It’s another thing entirely to seriously prepare for forced birth at six weeks, which Jennifer Canady can’t run away from fast enough.
That’s how you know “pro-life” people aren’t really forced birthers. That’s how you know the “pro-life” movement is dead. It cannot exist with actual power, which means it never really existed at all.
With their silence, Florida “pro-lifers” are practically begging us — like the court and the state begged each other Friday — to make them feel like the good guys again — to give them back their fake, unearned moral authority, to take away their power so they can call us the baby-killers again — even though they’re killing babies in Texas as we speak. (John Stemberger said he was unaware of the post abortion ban infant death surge in Texas. I sent him a link.)
I’m happy to oblige these pro-lifers who don’t want to be forced birthers. Giving them back their laughable self-righteousness to protect everyone — but especially the women I love — is a trade I’m happy to make. But these aren’t my laws or my court.
You, “pro-lifers,” so afraid of forced birth, will have to do some of you own moral work for once.
Thoughts and prayers.
I’ve included below three brief excerpts from the legal brief that my great aunt Kate Walton and my great grandfather Judge Vertrees (J.V.) Walton submitted in 1943 to the Florida Supreme Court to establish a right of privacy in Florida’s common law. The Supreme Court ruled in her favor in 1944.
These scans come from the actual original signed documents submitted to the Supreme Court, which I did not know still existed until Friday. I’ve had copies and drafts for a long time. But I only learned that I could still see the historic, signed documents themselves because I attended the hearing.
In part 2, we’ll get into the almost famous Marjorie Kinnan Rawlings “invasion of privacy” case that produced this brief. But check out what Kate Walton, arguably Florida’s first significant female litigator, jammed into the word “privacy” just in these excerpts and citations. It’s fascinating context for what was a pretty fascinating forced birth hearing.