‘People of Florida aren’t stupid’: State high court grapples with abortion measure

TALLAHASSEE, Florida — Florida’s Supreme Court justices on Wednesday were critical of state officials’ challenge to a ballot initiative that would enshrine abortion protections in the state Constitution.

Florida GOP Attorney General Ashley Moody asked the state Supreme Court to intervene to block the proposed amendment, arguing that the language of the initiative is too complicated for voters to take in at the ballot box. Florida Gov. Ron DeSantis, who appointed five of the seven justices on the bench, also opposes the ballot initiative.

The initiative, put forward by a coalition of abortion rights groups, would roll back the state’s current ban on abortions after 15 weeks of pregnancy to about 24 weeks, when the fetus is viable outside the womb. The proposed measure would also block an even tighter 6-week ban that has not yet taken effect.

The coalition has already collected close to 1 million state-certified signatures, well over the requirement to make the 2024 ballot.

After just less than an hour of oral arguments, Chief Justice Carlos G. Muñiz said that he believes Florida voters would be able to understand the ballot question and its implications.

“The people of Florida aren’t stupid — they can figure things out,” Muñiz said. “People can see for themselves whether it’s too broad or vague.”

If the justices green-light the measure, it would be a striking development for reproductive rights in Florida that would affect thousands of women across the South who travel to the Sunshine State for the procedure. It would also mark a major loss for DeSantis and state Republicans, who passed two restrictive abortion measures in recent years that that ballot initiative threatens to undo.

Toward the beginning of the hearing, Justice John D. Couriel said that one of the goals of the court was to determine whether the 75-word summary would go before voters was a “wolf in sheep’s clothing.” By the end, Muñiz said the summary was simply a wolf and not “trying to be deceptive.”

“Part of the job of the proposed amendment is to make sure that they are communicating the chief purpose and intent that this amendment would actually do,” Muñiz said. “This comes as a wolf that comes as a wolf.”

Couriel, Muñiz and Justice Charles T. Canady also seemed skeptical that the ballot language does not adequately convey what the amendment would do in practice, as argued by Florida Deputy Solicitor General Nathan Forrester on behalf of Moody.

“There’s no way this summary can go through all of the variables and possible implications,” Muñiz said. “There’s no answers to some of these questions and the summary says for itself that the issue is too broad.”

Several justices did, however, echo the talking points of anti-abortion groups during Wednesday’s oral arguments, repeatedly referring to fetuses as “unborn children,” claiming the measure would greenlight abortions “through all nine months” of pregnancy, and warning that it could allow tattoo artists and other non-physicians to perform the procedure.

Support for the measure

The coalition pushing the ballot measure, Floridians Protecting Freedom Inc., now must wait until the Supreme Court either decides to reject the amendment, approve the measure for this year’s ballot or do nothing until April 1 and allow the measure to proceed by default. The court typically reviews ballot initiatives to assure they only apply to a single subject and that the amendment language is easy for voters to understand.

Floridians Protecting Freedom has collected roughly 1 million state-certified voter signatures since the campaign began in April, easily beating the state’s threshold of 891,523 signatures more than a month ahead of the Feb. 1 deadline. The campaign had also collected more than $15.6 million in cash contributions by the end of last year, according to state campaign finance records.

Ashley Walker, a member of the Women’s Freedom Coalition, which supports the measure, said after Wednesday’s hearing that she was pleased to hear Muñiz express confidence in voters’ ability to understand the measure.

“The 1.3 million people who signed the petition clearly knew what it was stating,” Walker said. “We heard a lot of questions today on whether the language was clear, and I think it was.”

Moody, citing the American College of Obstetricians and Gynecologists, argued that the measure’s language protecting abortion access until viability is confusing because it’s not always clear when a fetus is viable outside the womb, that it doesn’t depend solely on the length of gestation, and that it requires a “nuanced” determination by doctors using several factors. The American College of Obstetricians and Gynecologists, however, denounced Moody’s characterization of their guidance in a court brief.

Groups such as Susan B. Anthony Pro-Life America and the Florida Council of Catholic Bishops oppose the initiative and each filed briefs asking the high court to reject it.

Yet the legal battle is also deterring some national groups from swooping in to support the Florida ballot campaign. The state’s high court bench leans conservative and many of them were critical of the landmark Roe v. Wade decision during September oral arguments that were held for a separate lawsuit challenging the state’s ban on abortion after 15 weeks of pregnancy.

The Fairness Project, a group that funds and coaches state ballot measure campaigns on abortion rights, Medicaid expansion, minimum wage hikes and other progressive priorities, told reporters on a call last week that they are pouring money into Arizona, Missouri, and Montana — but not Florida. At least, not yet.

“Florida is the poster child of a very unfriendly state for ballot measures,” said Kelly Hall, the executive director of the Fairness Project. “There are higher hurdles to climb in Florida than a lot of other states. So this is not to say that any of us are rooting against that ballot measure or that we think it should lose on its merits. But Florida makes this a challenging process and a process that is really susceptible to political and anti-abortion actors working their will instead of allowing the voters to work their will.”

If the Supreme Court allows the measure to move forward, it would need at least 60 percent of the vote to pass. If enacted, it would preserve abortion access for the roughly 7,000 women who have come to Florida each year from neighboring states that recently approved much tighter restrictions. And it would also deal a blow to Florida Republicans who have tightened controls under Gov. Ron DeSantis and made it tougher to change the state Constitution through the citizens ballot initiative process.

Florida is among more than a dozen states where progressive groups are trying to put abortion on the 2024 ballot, and it follows GOP-led states including Kansas and Ohio, where voters approved measures in the wake of the Supreme Court decision that dismantled Roe in June 2022. Ohio voters in November approved a measure similar to one in Florida, which rolled back abortion restrictions that were approved by GOP lawmakers there.

Florida is also far from the only state where GOP officials and conservative groups are working to block an abortion-rights measure from making it to the ballot.

Using ballot measures

Abortion opponents across the country are deploying a variety of tactics using all branches of government to try to halt the post-Dobbs winning streak of such initiatives, which have preserved or restored abortion access in several red and purple states since 2022.

GOP lawmakers are introducing bills to raise the signature threshold or require signatures from certain geographic regions, Republican state officials are intervening to change the wording of the measures and the estimates of what they could cost taxpayers, and — as in Florida — state attorneys general and anti-abortion groups are challenging the proposed amendments in court.

In Nevada, for instance, abortion opponents are suing under the state’s single-subject rule — arguing that the abortion-rights constitutional amendment is confusing and misleading because it covers multiple reproductive health related issues — such as infertility, postpartum care and birth control — in addition to abortion. A lower court sided with anti-abortion groups in the fall, and the matter is being appealed to the state Supreme Court, which will likely take up the case later this year.

Progressive groups are particularly worried that other red states will copy Moody’s argument that ballot measure language protecting abortion to the point of fetal viability — the standard nationwide for half a century under Roe — is confusing to voters.

As they await a ruling out of the Florida Supreme Court, abortion-rights advocates are bracing for other states to adopt this tactic, particularly Nebraska where the governor recently said a proposed abortion-rights ballot measure is “very vague” because “fetal viability” could be defined “a lot of different ways.”

“Places like Florida are incubators for ideas,” Hall said. “If they are successful, you will see states around the country using that to figure out how they can further restrict access to abortion.”

Florida’s 15-week ban is also facing a legal challenge brought by abortion rights groups such as Planned Parenthood and the ACLU of Florida — another case in the hands of the Supreme Court. The groups argued the ban violates a right to privacy that was added to the Constitution by voters in 1980, but the high court justices have voiced skepticism that the privacy right was intended to protect abortion access. Should the court uphold the 15-week ban, a 6-week ban that DeSantis signed into law last year would take effect 30 days later.

A favorable high court ruling for the 15-week ban would also leave the state privacy right useless for pro-abortion groups, which have used the privacy right to successfully sue to stop dozens of abortion restrictions for more than 30 years. Passage of the ballot initiative, meanwhile, would send Florida Republicans back to square one when it comes to passing abortion restrictions.

At Wednesday’s hearing, Muniz also made it clear that the court will not consider the issue settled even if the amendment is approved for the November ballot and wins supermajority approval.

“If this becomes part of the Constitution,” Justice Muñiz warned, “it will be litigated forever.”