Conservative Supreme Court could deny Floridians a say on abortion rights

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ORLANDO — Floridians are signing petitions to put abortion rights to a vote of the people next fall, but they could meet an insurmountable setback from the state’s conservative Supreme Court.

The high court must approve the ballot initiative’s language, and if it doesn’t, the amendment won’t be on the 2024 ballot.

The amendment’s backers also still need to gather more than 400,000 signatures to get on the ballot, counter an anti-abortion ad campaign already taking shape and win at least 60% of the vote to secure passage.

Republican Attorney General Ashley Moody is fighting to keep the measure protecting abortion rights off the ballot, arguing it is misleading because it doesn’t define “viability.” The public has differing interpretations of what that term means, she wrote in a legal brief.

It’s an argument that could carry weight with the court given its “extremely conservative makeup,” said Bob Jarvis, a law professor at Nova Southeastern University.

One justice is married to a sponsor of Florida’s six-week abortion ban and pushed anti-abortion bills when he served in Congress. GOP presidential hopeful Gov. Ron DeSantis appointed five of the seven justices.

“The failure of the promoters of this amendment to define ‘viability’ is, in my opinion, a serious mistake,” Jarvis said. “At a minimum, if the amendment is passed, it will lead to years of litigation.”

The court has until April 1 to hand down a decision.

Cecile Scoon, co-president of the League of Women Voters of Florida, said she thinks Floridians know what is at stake.

“They understand that what the government is trying to do is insert itself in your ability to make private decisions with your medical provider,” she said. “It is so understood. It is plain as the nose on a person’s face.”

The ballot initiative’s summary states in part, “No law 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.”

The amendment’s backers spent a year carefully crafting the language with legal experts to ensure it would meet the state’s requirements before they went public with the petition in May, said Lauren Brenzel, campaign director for Floridians Protecting Freedom, the group sponsoring the initiative.

She called Moody’s argument “hollow and politically motivated.”

“We feel confident about our language. … I don’t think there is a voter who wouldn’t understand exactly what this language means,” Brenzel said.

Earlier this year, DeSantis signed a bill that bans most abortions after six weeks of pregnancy. That law will take effect if the Supreme Court upholds a 15-week abortion ban passed last year.

The court is tasked with evaluating proposed citizen ballot initiatives to determine if the language is clear, won’t mislead voters and deals with a single subject.

If it deems the ballot language to be misleading, abortion rights supporters would have to start over again, with the next opportunity coming in the 2026 election.

Moody, a close ally of DeSantis, urged the court to reject the amendment, calling it an “effort to hoodwink the Florida electorate.”

“The ballot summary here is part of a … design to lay ticking time bombs that will enable abortion proponents later to argue that the amendment has a much broader meaning than voters would ever have thought,” Moody argued in her brief.

Some voters could interpret viability to mean when a fetus could survive on its own with standard medical intervention, while others may think it refers to the point at which a pregnancy is expected to result in a live birth, barring an abortion or unexpected misfortune, Moody wrote.

She also objected that the ballot measure doesn’t distinguish between physical and mental conditions for abortions done to protect the patient’s health.

Floridians Protecting Freedom fired back in its brief that the term “viability” has a “well-understood, commonly accepted meaning” as “the point at which a fetus could survive outside the womb.”

State law defines viability as “the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.”

The term “health” also has a “common sense” meaning and has been used in ballot summaries approved by the court in the past, the campaign’s lawyers argued.

Abortion rights supporters are optimistic about their chances in Florida given successes in other states.

Most recently, Ohio voters approved a constitutional amendment protecting abortion rights with 57% of the vote. Ballot language became an issue there, with supporters blasting Republicans for modifying the text, such as using “unborn child” instead of “fetus.”

Florida’s campaign has secured nearly 500,000 signatures and raised more than $8 million. They’ll need 891,523 signatures by Feb. 1 to make it on the ballot. The measure needs at least 60% voter approval to pass.

Since the Ohio election, Florida’s petition has seen a surge in volunteers and donations, drawing support from all party affiliations, Brenzel said.

“We don’t see this as a political issue,” she said. “We see it as a health care initiative. … Politicians shouldn’t be the main deciders on this issue. It should be doctors.”

Organizers feel good that they will be able to meet the signature deadline, despite new regulations enacted by the Republican-controlled Legislature that have made it harder for groups to get on the ballot, Brenzel said.

Making the ballot is an expensive proposition. Campaigns must use paid signature gatherers to meet the deadline.

Another campaign to legalize recreational marijuana has raised nearly $40 million, almost entirely from Trulieve, Florida’s largest medical marijuana operator.

John Stemberger, president of the anti-abortion Florida Family Policy Council, said he thinks there’s a chance the Supreme Court will reject the abortion initiative, but a coalition is forming to oppose it with mailers and television ads if it does make the ballot.

“The structure is being created to have a full-blown campaign,” he said. “There will be millions of dollars spent.”

Stemberger painted the proposed amendment as an extreme measure that would allow abortion up until birth.

Brenzel countered that the initiative was written to ensure women get the health care they need to address life-threatening conditions that can arise during pregnancy. Supporters are preparing their own campaign to combat “misinformation” from anti-abortion advocates, she said.

At the last presidential debate, DeSantis said the anti-abortion movement had been caught “flat-footed” on ballot initiatives and referendums.

In a follow-up interview, DeSantis told NBC News the “pro-life movement has got to start keying in on these referenda. They have been getting their clock cleaned.”

Florida’s Supreme Court has shifted to the right with DeSantis’ five appointees all having ties to the conservative Federalist Society.

Justice Charles Canady’s wife is state Rep. Jennifer Canady, R-Lakeland, who co-sponsored a six-week abortion ban. Charles Canady also has a deep-rooted opposition to abortion dating back to his time in the Legislature and Congress.

Another justice, Jamie R. Grosshans, did legal work for a group that discourages women from having abortions, the Times/Herald Capitol bureau reported.

But Scoon said she hopes the justices will put aside their personal views and let the people have a say on the issue.

“I would hope the Florida Supreme Court would show a willingness to adhere to the standards of the law and not make political decisions,” she said.