john w k
Florida’s “Parental Notice of Abortion Act” and tyrant Justi
Sun Jan 4 01:45:55 2004
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Florida’s “Parental Notice of Abortion Act” and tyrant Justice Shaw

American Constitutional Research Service

Jan. 3, 2004

In a recent case North Florida Women's Health & Counseling Services, Inc. v. State of Florida[decided July 10th, 2003] Senior Justice Shaw delivering the opinion of the Court which struck down Florida’s “Parental Notice of Abortion Act” stated the following:

“In the final analysis, we cannot fault the trial court for faithfully applying the controlling law. The court reasoned simply as follows (1) This Court in T.W. held that the Parental Consent Act imposed a significant restriction on a pregnant minor’s right of privacy. (2) The Court in T.W. further held that, in light of the Legislature’s less restrictive treatment of minors in other comparable procedures and practices, the State failed to prove that the Parental Consent Act “furthered” a compelling State interest. (3) In the present case, the Parental Notice Act also imposes a significant restriction on a pregnant minor’s right of privacy. (4) In the intervening years since T.W. was decided, there has been no change in the Legislature’s treatment of minors in other comparable procedures and practices. (5) the State similarly has failed to prove that the Parental Notice Act “furthers” a compelling State interest.” [see page 54]

But in the T.W. Case, [see: In re T.W., 551 So. 2d 1186 (Fla. 1989)] the Court, and specifically Justice Shaw, who there also wrote for the court, arbitrarily endorsed a precedent setting procedure and standard for determining what is and what is not constitutional, and then, in the Women’s Health case cited above, used T.W. to claim the Court could not overturn its precedent making procedure and standard because of stare decisis, [a court’s obligation to abide by its own precedent] which Justice Shaw was quick to state is “a fundamental tenet of Anglo-American jurisprudence …”

What is most telling about Shaw’s reliance upon stare decisis in refusing to overturn a decision of his made earlier and less than twenty years in the past, is his claim that he cannot violate a “fundamental tenet of Anglo-American jurisprudence”, stare decisis, but in the process he ignores the most fundamental tenet of Anglo-American jurisprudence there is, which has over three hundred years of history and requires the court to enforce the legislative intent of a constitution as contemplated by those who framed it and the people who adopted it.

And what is even more remarkable about the precedent setting opinion of Justice Shaw in the T.W. case is its implication that it is within the courts authority to judge a challenged law, not upon constitutional grounds such as an alleged violation of the authorized delegated authority vested in the Legislature by the state‘s constitution and/or, whether or not the law in question is in harmony with the legislative intent of the rights and protections enumerated by the people in their constitution, but rather, Justice Shaw announced to the world a new procedure for the Florida Court to follow when passing upon the validity of a legislative act: that it heretofore authorized future courts to determine whether or not a legislative act “further[s] a compelling state interest”, and if not, it is within the courts power to strike the law down as such, and without regard to its allowance or disallowance under constitutionally authorized legislative powers.

To fully understand what Justice Shaw has subtly accomplished, one must first realize that here, in the United States, our written constitutions, state and federal, are intentionally designed by the people to protect them from unwarranted government actions, and there is no provision to divest a person of any constitutionally guaranteed rights if a judge determines there is a “compelling state interest” to do so.

For example, a person in Florida under the protection of its constitution may not be denied a trial by jury even if the state feels there is a “compelling state interest” to deny that person a trial by jury and some judge happens to agree. But in Israel, for example, where there is no written constitution adopted by the people, and the people live under what is called the BASIC LAW of Israel--- law created and adopted by folks in government as opposed to the people adopting a written constitution--- individual rights listed in Israel’s Basic Law may be set aside at the courts pleasure if the court feels a compelling state interest exists!

See No 8 of Basic Law: Human Dignity and Liberty

“There shall be no violation of rights under this Basic Law [b]except by a Law befitting the values of the State of Israel, designed for a proper purpose, and to an extent no greater than required or by such a law enacted with explicit authorization therein.”

So, what Justice Saw has attempted to impose upon the People of Florida by his decision in T.W., and which he defended in North Florida Women's Health & Counseling Services, Inc. v. State of Florida case as being binding precedent because of stare decisis, is a system of law similar to Israeli law, in which the Court may determine, as a priority to individual rights, the wisdom of a law and whether such legislation is, or is not, in the state’s interest and then enforce its decisions as binding law.

But under America’s constitutional system such power exercised by the court is a tyrannical assumption of power and violates the separation of powers between the judiciary and legislature. In America’s system, it is the legislature’s function and duty to enact law which is, and always has been presumed in the first instance by the Court to not only be constitutional, but in the best interests of the people of the state, and, the judiciaries function is not to question the judgment or wisdom of the legislature, but only to insure that enacted legislation is not in conflict with the legislative intent of the provisions of the constitution as contemplated by the people who adopted them.

In North Florida Women's Health & Counseling Services, Inc. v. State of Florida, Senior Justice Shaw along with ANSTEAD,C.J., PARIENTE and QUINCE,JJ., in striking down the statute adopted by Florida’s Legislature titled the “Parental Notice Act”, stated with specific reference to Article 1, Section 23 of Florida’s Constitution, that to not strike down the Act, the Court “ would have to forsake the will of the people”.

But the irrefutable fact is, regarding Article 1, Section 23 of Florida’s Constitution, the intent of the people concerning the amendment, as established by historical records, was to preclude government snooping on private individuals and was never, even remotely intended by the people to overturn or alter in any manner whatsoever parental rights and responsibilities with regard to their children as has been know to the People of Florida from its beginning, and likewise recognized and upheld by the Court until Justice Shaw decided to rewrite the legislative intent of the people and substitute his own personal predilections for the people’s intent.

For this criminal conduct, Shaw ought to be tarred and feathered and then banished from the state of Florida for abusing his office of public trust. Unfortunately, not only will this not happen, but there is an effort afoot by some legislators in Florida to provide a specific amendment to Florida’s constitution to overrule the Court’s opinion and require parental notification prior to a child having an abortion. What is wrong with such an attempt is that it allows the court’s precedent, which violates fundamental principles of constitutional law, to stand and not be challenged, more importantly, it allows the Court to continue to exercise the precedent setting authority of sitting in judgment over the wisdom for which a legislative act has been passed. There is only one safe rout, and that is to have the tyrannical grab of legislative power by the court reversed, and those who were willing participants in the decision excoriated for their criminal conduct.

John William Kurowski

American Constitutional Research Service

P.S. The Women’s Health Case, relying upon the unconstitutional precedent set in the T.W. Case, was recently used to reject Governor Bush’s attempt to have Justice Baird removed from the Terri Schiavo case for his comment that Terri’s Law was “presumptively unconstitutional”. The Court in citing the Women’s Health Case, claimed Baird “simply announced the standard by which he believes the constitutionality of the statute is to be measured”, meaning he will decide Terri’s Law, not upon the authorized power of the legislature to enact such a law, but rather, whether he feels Terri’s Law promotes, “a compelling state interest” as the standard allows in the T.W. case.

"As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness."___Supreme Court Justice William Douglas

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