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Florida analysts say the leaked SCOTUS opinion on abortion could mean other rights are in jeopardy

Protestors gather outside of the Florida Capitol for the Gender Justice Now march in opposition to the threat of Florida Abortion ban.
Craig Moore
WFSU Public Media
Protestors gather near the Florida Capitol for the Gender Justice Now march in opposition to the threat of a Florida abortion ban; Oct 2, 2021.

A draft Supreme Court opinion that would eliminate federal abortion protections raises concerns that other rights not specifically spelled out in the Constitution could also be targeted.

Hundreds of people recently gathered in front of the Florida Supreme Court to protest a leaked opinion striking down Roe versus Wade.

Marina Pecorino, a 38-year-old Tallahassee resident, says she was devastated when she learned of the leaked draft opinion.

“I cried," she said. "Then I yelled, and then I cried some more.”

Pecorino says she almost needed an abortion 4 years ago when she was pregnant with her son. While she was relieved her situation happened before the draft opinion came down, she worries about what could happen if women don’t have the right to have an abortion.

In the draft opinion, Justice Samuel Alito argues abortion is not a right because it is not specifically mentioned in the U.S. Constitution.

University of Miami Law Professor Caroline Corbin says the Constitution protects certain rights not specifically mentioned in the document. “Among these unenumerated rights are a group of rights known under the umbrella term as the right to privacy,” she says.

The right to privacy has been used to pave the way for other pivotal U.S. Supreme Court decisions like legalizing interracial marriage and same-sex marriage. It’s here where people like Todd Delmay worry the nation’s high court could invalidate their marriages.

Delmay and his husband Jeff were one of the first same-sex couples in Florida to marry after the state’s ban was ruled unconstitutional in 2015. “My husband and I are an interracial couple as well, and again, it’s just this insidious creep of a conservative radicalism that is affecting the courts,” he said.

Delmay is a Democrat running for Florida House District 101.

Florida still has a ban on same-sex marriage in the state, it’s just not being enforced. Delmay worries the U.S. Supreme Court could soon target a key case that paved the way for gay marriage.

“If Obergefell (v. Hodges) were to fall, then Amendment 2, which again was added in 2008, would again be the law of the land, and it would be enforced," he said. "I think that’s partly why they’ve been unwilling to remove it. We’ve asked them, like I said, for years.”

Under that scenario, Florida’s ban would once again go into effect because the legislature never removed it from the state constitution. Supreme Court Justices Clarence Thomas and Samuel Alito have called for the court to revisit Obergefell.

Longtime abortion rights advocates fear a return to pre-Roe days, when women would have abortions illegally – often at the risk of their own lives.

“A lot of women died,” says Barbara DeVane, a longtime lobbyist for women’s rights issues. She’s been working in that space since before abortion became legal. So has Jacksonville Civil Rights Attorney Betsy White. Her late husband, Bill Sheppard, was part of an underground network pre-Roe that would help women in Florida obtain abortions in New York.

“They were threatened with prosecution, and my husband said ‘bring it on.’ Of course, that was just another hollow threat,” says White.

If the U.S. Supreme Court goes with Alito’s justification for overturning Roe, it could jeopardize Florida’s constitutional protections. The Florida Constitution has a guaranteed right to privacy, and the Florida Supreme Court has historically used that right to privacy to block legislative efforts to restrict abortion in the state.

Gov. Ron DeSantis recently approved a bill passed by the legislature banning abortions after 15 weeks of pregnancy. Professor Corbin says now that Florida’s high court is more conservative, it will likely take note of the U.S. Supreme Court’s move. “The Florida Supreme Court in deciding that case may reinterpret the right to privacy in a way that affects abortion more generally,” Corbin says.

Sarah Mueller is a journalist who has worked for media outlets in several states since 2010. She earned her bachelor’s degree in journalism in 2010 and worked as a print reporter covering local government and politics.