From Cross Creek to … Abortion?
Last week, because I wanted to mock the strange conservative political infatuation with Republican senate candidate Marco Rubio — a run-of-the-mill corporatist if there ever was one — I spent a few minutes on Rubio’s website looking for policy specifics. I did not find many. But I did stumble across one intriguing passage. In criticizing new U.S. Supreme Court Justice Sonia Sotomayor, Rubio wrote:
I have more specific concerns about her case history and testimony regarding the Second Amendment at the state level, eminent domain takings and the so-called constitutional right to privacy [emphasis mine] that resulted in the Roe v. Wade decision.
Hmm. I’ve always thought of the Cross Creek Trial and its privacy claims in speech terms. But, of course, as Rubio points out, legal abortion also relies on the concept of privacy as an enforceable right under the U.S. Constitution. I wonder if the clear establishment of the right of privacy in Florida law that emerged from the Cross Creek trial bears at all on the federal abortion ruling that followed almost 30 years later. It sharpens a larger question I need to answer: What, if any, practical implications emerged from the establishment of a Florida state right to privacy? Any lawyers who might happen upon this, please weigh in.
Was that last line directed at me?
Your case of interest (I think, I have not read the opinion) has to do with the TORT of invasion of privacy which is rooted in the common law. It is the right of one private person to sue another private person for invading one’s privacy.
The Roe v. Wade decision is founded on a CONSTITUTIONAL RIGHT not to have the government restrict private conduct.
Although they both use the word “privacy” they are two entirely different legal concepts. One is a cause of action among private individuals, the other a limit on what a government is able to do. One is founded in the common law, the other on constitutional concepts.
I am much more of a legal pragmatist than a scholar, but I will venture to say that these two decisions MIGHT follow from the same ancient common law principles that came over on the boat that landed at Jamestown. Perhaps they share a common ancestor, in the same sense that apples and oranges do. It is unlikely that one could draw a line from your case to Roe v. Wade in any coherent way without going way back in time before coming forward again. That’s more of a strong hunch than a rock solid conclusion.
With respect to the more broad question, which is more interesting and answerable, the best place to start would be to Shepardize the appellate opinion and start reading.