A lopsided oral argument Wednesday saw conservatives on the Florida Supreme Court openly disagreeing with the state Attorney General’s opposition to an abortion amendment that could rewrite pregnancy termination rules in the state.
Attorneys opposed to the ballot measure petition—which has received more than 1,000,000 voter signatures—urged the court to reject the ballot measure’s summary and bar it from the ballot. Opponents said the language didn’t adequately describe how sweeping the amendment would be, but several justices rejected that contention out of hand.
“It’s pretty obvious that this is an aggressive, comprehensive 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.”
Florida’s high court plays a limited but crucial role in the state ballot measure process. It’s charged with ensuring ballot measure summaries don’t confuse voters and that amendments don’t “logroll” disparate issues into a single proposal. While some justices pressed the abortion rights ballot group on these points, the court directed the majority of questions at the opponents of the measure.
“If I understand your position, you’re saying this is a wolf. And a wolf it may be, but it seems our job is to say whether it’s a wolf in sheep’s clothing,” Justice John D. Couriel said to the state’s attorney. “The question before us is this hiding a ball in some meaningful way, or can voters look at this and say that’s sweeping and we shouldn’t approve this?”
‘Power to End Lives’
Democrats are hopeful the political tilt of the court won’t impact rulings on this ballot measure and a separate recreational pot measure, which liberal groups believe could create large voter turnout this November.
The court pressed lawyers on both sides with statements and questions signaling the justices are open to accepting anti-abortion legal arguments but are cautious about their legal philosophy limiting how ballot measures come before voters.
Several justices dug into how the amendment would prohibit state regulation “before viability” and would allow for abortions thereafter to protect the “patient’s health, as determined by the patient’s healthcare provider.”
“There are two scenarios,” Justice Meredith Sasso said. The court considers words in the amendment “undefined and will play out later” or the amendment “has clear meaning and shifts policy making to an expert class of doctors” who will “have power to end lives in the state of Florida.”
The court has never struck a ballot measure for a proposal shifting policy, said Courtney Brewer, attorney for ballot group Floridians Protecting Freedom.
“This amendment follows the directive given by the US Supreme Court in Dobbs that the people should decide how their state governs abortion, and in crafting the amendment and summary the drafters followed the instructions given by this court,” Brewer said.
Fetal Personhood
While Muñiz said he didn’t find the language confusing, he raised the broader issue of fetal personhood that could overhaul state abortion regulation.
The ballot measure case is one of two high profile abortion fights currently before a court dominated by conservative Gov. Ron DeSantis (R) appointees. The other is Planned Parenthood of Southwest and Central Florida’s challenge to the state’s 15-week abortion ban, in which providers argue the Florida Constitution’s right to privacy includes a right to terminate pregnancy.
The issue of fetal personhood—the idea that law protects fetuses to the same extent it protects children once born— didn’t appear in any of the briefs. And Senior Deputy Solicitor General Nathan A. Forrester, pausing for several moments before answering, said his office has “no position on that.”
The issue hasn’t been addressed by the justices in any previous decision, but Muñiz repeatedly questioned Forrester on whether the Florida Constitution’s guarantee that all “natural persons” be “equal before the law” can apply to fetuses. He questioned whether the court could rule on whether the abortion amendment was misleading without first deciding if it would eliminate this superseding right.
“I do see a potential for that argument to be viable,” Forrester said.
Brewer sidestepped that question directly when Muñiz addressed the personhood question to her.
“If the sponsor had to include something like that, we’d have to weigh into issues in the state constitution that have never been weighed into by this court,” she said. “It would take away the voters’ right to amend the constitution.”
The case is Advisory Opinion to the Atty. Gen. re: Limiting Gov’t Interference with Abortion, Fla., No. SC2023-1392, oral argument 2/7/24.
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