The Florida Supreme Court heard oral arguments on Wednesday morning on whether the state’s proposed abortion amendment meets the state’s constitutional requirements to appear on the ballot in 2024.
The abortion rights group Floridians Protecting Freedom collected 1.5 million signatures as of January to place the measure on the general election ballot this November. However, in October 2023, Florida Attorney General Ashley Moody asked the state Supreme Court to review the wording of the amendment and ballot summary, saying that the wording of the measure is possibly confusing to voters.
Deputy Solicitor General Nathan Forrester argued that the amendment’s language is ambiguous and could lead to a variety of interpretations, resulting in further litigation if the measure is passed.
The text of the amendment states that no law from the state legislature “shall prohibit, penalize, delay or restrict abortion before viability or when necessary to protect the patient’s health as determined by the patient’s healthcare provider.”
Forrester said the amendment’s “elasticity” prevented any regulation of abortion procedures, ranging from licensing requirements for providers to safety standards for clinics.
Courtney Brewer, a counsel for Floridians Protecting Freedom, conceded that disputes in interpreting the amendment in the legislature may result in future cases before the court but retorted it would be impossible to address every eventuality of regulation in the ballot summary.
“Those are arguments that the AGs may certainly make on the stump, but they are not arguments appropriate for this court’s analysis right now about whether the summary clearly states the purpose” of the amendment, Brewer said.
Several states are weighing similar abortion rights amendments for the 2024 election cycle. In 2023, Ohio passed an abortion rights amendment prohibiting any legislative limitations on the procedure until fetal viability.
Katie Daniel, state policy director for SBA Pro-Life America, told the Washington Examiner that constitutional amendments by ballot initiative remove significant authority from the legislature and require more judicial adjudication on controversial matters.
“These amendments are actually antithetical to democracy because instead of making policy decisions in the legislature, we move those decisions across the street to the justices,” Daniel said. “This takes away the people’s power to make policy in a way that is moving, that is responsive to the current needs of the people, and in a way that has accountability of [voting out] your elected official.”
Chief Justice Carlos Muniz took both sides off-guard by asking if the state’s basic human rights provision grants protections to the unborn. If so, the amendment would be required to address how it may change the interpretation of existing portions of the state constitution.
Forrester admitted to Muniz that the attorney general’s office had not considered this line of questioning but saw “the potential for that argument to be viable.”
Brewer argued that because the court has not ruled on whether the state constitution protects the unborn, it would have been unreasonable for FPF to take the matter into consideration in its ballot language.
“I don’t think there’s any authority under Florida law to say that it does include the unborn,” Brewer said. “I think, in that instance, we would really lose the clarity that the constitution requires [of] a proposed amendment.”
Daniel told the Washington Examiner that there are several state laws in Florida that recognize the humanness of the unborn, such as the fetal homicide statute that separates the life of an unborn child from its mother.
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“From a statutory perspective, this is very much a live question,” Daniel said. “From a constitutional perspective, it’s something they haven’t necessarily dug into, but if this amendment would have an impact on future decision-making, then that’s something that the voters should know.”
The court is expected to have a decision by early April for ballots to be printed.
