A recent opinion editorial published by the Miami Herald columnist and reporter Fabiola Santiago entitled “Kansas abortion vote should teach cocky Florida Republicans not to mess with women” is unfortunately locked behind a paywall, which means few people will actually get to see Santiago’s illogical screed. The Miami Herald declined to publish this response last week. This article was subsequently edited and published by the next outlet that received it.
Despite Santiago’s wished-for outcome as stated in her headline, the failure of the Kansas constitutional amendment seeking to clarify their state constitution on the matter of abortion means absolutely nothing about either the United States or the Florida Constitution’s proper textual meaning (or lack thereof) on the issue of abortion. As an initial matter, Santiago fundamentally misapprehends what happened in Kansas earlier this month. Despite her claim that Kansans voted to change their Constitution to allow abortion, that is not what happened at all.
The Kansas Constitution does not mention abortion once. But in 2019, a highly controversial ruling by the Kansas Supreme Court, in an appalling arrogation of power by a majority of unelected liberal justices appointed by then-Governor Kathleen Sebelius (of Obamacare Fame), somehow conjured the “right” to abortion. Kansan conservatives tried to clarify that the power to regulate abortion remains in the hands of their elected representatives, as stated in Dobbs, the recent United States Supreme Court decision overturning Roe. If Kansans disapproved of abortion regulation, presumably they would not have elected a Republican Legislature. Our party has been avowedly pro-life for at least a generation.
Both Kansas and Florida Supreme Court precedent relies on Roe more than the text in supporting constitutional alchemy. The Kansas Supreme Court’s latest abortion case relied on Roe 36 times, the Florida Supreme Court’s 1989 opinion likewise cited Roe 28 times. A few other similarities between the two states are worth noting: proposed constitutional amendments in both Kansas and Florida are only adopted by affirmative vote of the electorate. Both Kansas (2022) and Florida (2012) saw failed constitutional amendments attempt to clarify abortion law. As such, no constitutional amendment has ever been passed on the issue of abortion by adults in either state. Whatever the Kansans did, then, did not change their Constitution as Santiago falsely claimed, and it obviously has no bearing on Florida’s.
Despite claims to the contrary, courts can and do overrule precedent all the time. A constitutional amendment is sufficient but not necessary, to correct egregiously wrong precedent like Roe and state-level “mini-Roes.” The United States Supreme Court revested abortion regulation in the state legislatures, not the courts. Absent any textual privilege for abortion in a state constitution or law, such power remains where it is vested by the United States Constitution and the United States Supreme Court: in the state legislatures, which retain residual and plenary police power, pursuant to the Tenth Amendment, over all law and regulation.
In fact, liberals who legislated from the bench will now suffer reversal of their policies for the same reason, as the courts return to the rigorous textual interpretation intended by the founders and espoused by state-level judicial applicants, nominees, and appointees. Kansan pro-lifers wanted an amendment, but they did not need it. All that is necessary is for their justices, like ours, to return to rigorous textualism and rule of law, while respecting the separation of powers inherent in the constitutional structure.
Contrary to Ms. Santiago’s assertion that Florida is a restrictive state for abortion, it is in fact the most lenient state in the South. Thousands of abortion tourists flock to Florida each year to access dozens of clinics, whereas many other red states have few, if any, such facilities. Several states have heartbeat bills, and others have private rights of action or licensing schemes. Planned Parenthood labors elsewhere under more restrictive regulation than in Florida. We have deliberately made the Florida Constitution difficult to amend and continue that work to protect our foundational document from out of state special interests. Although amendment of the Kansas Constitution remains easier than in Florida, an amendment may fail for any reason, no reason, poor advocacy, ballot fatigue, or mere inadvertence. Poor performance by purveyors of an amendment does not protect faulty court decisions. In other words, from preschool to constitutional law, the enduring principle remains: two wrongs do not make a right.
Each constitutional republic (including each of the 50 states, the federal government, and numerous foreign jurisdictions), places the onus on the proponent of a purported right to enact a law or pass a constitutional amendment. No provision licenses a high court, state or federal, to distort and dilute the text of any constitution by concocting new meaning. Such a practice is repugnant to the principles of rule of law that we all agree on despite serious policy differences on abortion.
The United States, Florida, and Kansas Constitutions place abortion, like most subjects of regulation, squarely within state sovereignty, to be decided by the people’s elected representatives according to normal processes of bicameralism and presentment. Abortion advocates claim their positions enjoy wide popular support, but this is belied by their striking inability to achieve electoral success or succeed at traditional lawmaking, either in Florida, Kansas, or even Washington (and, quite frankly, anywhere in between).
The Constitution is amended through successful amendments, not failed ones. Proponents of an amendment must follow a strict set of procedures and then win the vote on election day. A “no” vote may be able to block a proposed amendment, but absolutely cannot create new law.
As a Florida Republican legislator, however cocky the Miami Herald may think I am, I will not be deterred in protecting the unborn here from political malpractice over 1000 miles away. Ms. Santiago and I agree on only one thing: that Florida, thanks to leadership from Governor Ron DeSantis and incoming House Speaker Paul Renner, is poised to move in a pro-life direction and enact further abortion restrictions after the election.
Rep. Mike Beltran is a Republican legislator who represents House District 57 in the Florida House.