Florida Supreme Court hears arguments on abortion ballot initiative

by | Feb 7, 2024

The Florida Supreme Court reviewed oral arguments on a proposed constitutional amendment to establish abortion rights up to fetal viability, amid debates on its potential conflict with federal laws and concerns over misleading language.

The Florida Supreme Court on Wednesday heard oral arguments regarding a proposed constitutional amendment on abortion rights.

The amendment initiative, led by abortion rights advocacy group Floridians Protecting Freedom, has reportedly gathered more than 1.4 million signatures, well beyond the required 891,523. However, as of this writing, just 996,512 of these have been validated, meaning that the remaining reported total must be registered and authenticated by Florida Secretary of State Cord Byrd.

Representatives for the Attorney General and Florida Voters Against Extremism, Nathan Forrester and Matt Staver, respectively, opened the proceedings by laying out their opposition to the initiative. They argued that the proposal is misleading because it suggests it would eliminate laws “prohibiting, penalizing, delaying, or restricting abortion.” They noted this assertion directly conflicts with existing federal laws, such as the Partial-Birth Abortion Ban Act, which already impose such restrictions.

The proposed amendment seeks to establish the right to abortion in Florida up until the point of fetal viability — estimated at around 24 weeks. Current state law prohibits most abortions after 15 weeks of pregnancy and an expanded six-week abortion limit is being decided on by courts.

The pair presented the argument that the proposal misleadingly claims it would prevent any laws from “prohibiting, penalizing, delaying, or restricting abortion,” despite federal laws like the Partial-Birth Abortion Ban Act that impose such restrictions.

“The proposed amendment should not be placed on the ballot because it is misleading in multiple respects,” he said. “First, it is affirmatively misleading because it tells voters something about the amendment. That is literally untrue.”

The assertion continued a contention offered by state Attorney General Ashley Moody, who similarly raised concerns over the amendment’s language.

The justices scrutinized the argument’s premise, questioning the extent to which voters should be expected to understand the legal nuances the amendment implies, especially in light of federal constraints. They subsequently deliberated whether the amendment’s language, particularly its use of “no law shall,” serves more as an affirmative declaration of a desired state rather than a descriptive statement of current laws.

“It’s pretty obvious this is an aggressive approach to dealing with this issue,” Chief Justice Carlos G. Muñiz said. “The people of Florida aren’t stupid, they can figure out what this says.”

The court also compared to past cases, such as one involving marijuana, where language suggesting permission was deemed insufficient without acknowledging federal law’s preemptive effects.

“Congress shall make no law does not mean that as a descriptive state, Congress can’t try to make a law for example that infringes on the right of free speech,” said Justice John Couriel.

Staver also argued that the amendment holds the potential to “broadly disrupt government operations” by “invalidating a range of regulations,” including those requiring parental consent for minors seeking abortions. He portrayed a scenario where, if passed, the amendment would significantly diminish governmental authority in regulating abortion, affecting all branches of government.

Countering, Courtney Brewer, representing the group Floridians Protecting Freedom behind the amendment, argued for its clarity and the public’s ability to understand its implications. Brewer pointed to the right of Florida’s citizens to amend their constitution, suggesting the initiative aligns with U.S. Supreme Court precedents on state sovereignty over abortion governance.

Brewer insisted the initiative’s language clearly communicates its intent to voters, meeting legal requirements for ballot summaries despite criticisms that it could mislead voters about its effects, especially concerning federal law and state regulations.

“The people of Florida’s right to amend their constitution is fundamental to our state’s democracy,” said Brewer. “Seeking to exercise that right, nearly a million Floridians and counting have made clear they want to vote on the amendment before this court. This amendment follows the directive given by the US Supreme Court.”

The justices raised concerns about whether the amendment’s summary provides voters with fair notice of its effects, especially given its potential to introduce significant changes to existing regulations. They questioned Brewer about the responsibility to ensure that the summary accurately conveys the amendment’s legal effects to voters, given possible interpretations and the amendment’s implications.

Brewer argued that the amendment and its summary use the same language, which should suffice for informing voters, citing previous cases where similar approaches met legal scrutiny. She contended that nothing in the case was misleading and that the amendment’s terms, such as “viability” and the role of the patient’s healthcare provider in determining it, are understood by voters within the context of abortion.

In a November survey conducted by the University of North Florida Public Opinion Research Lab (PORL), 62 percent of respondents indicated they would support the amendment if it were to be included in the 2024 ballot. Conversely, 29 percent expressed opposition to the measure, while 9 percent remained undecided or chose not to disclose their position.

“If this amendment does make it on the ballot, initiatives like this one need a supermajority of 60 percent in order to pass, and it looks like the proposed abortion amendment is right at that threshold among these respondents,” commented PORL faculty director and professor of political science Dr. Michael Binder. “Even among registered Republicans, 53 percent would vote to protect abortion rights in Florida, with just 39 percent voting no.”


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