Florida Supreme Court peppers both sides about abortion amendment

Florida Supreme Court justices grilled both sides of the abortion debate Wednesday in a high-stakes hearing over whether voters should get a say on the issue in the November election, with some judges appearing skeptical of the opposition’s argument the initiative would deceive voters.

Chief Justice Carlos G. Muñiz said he thought voters would understand the ballot summary, but he pondered whether the proposal protecting abortion rights could conflict with another constitutional provision.

“The people of Florida aren’t stupid,” he said. “They can figure this out.”

The 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.”

If approved by at least 60% of voters, the amendment would trump the Florida Legislature’s effort to ban most abortions after six weeks of pregnancy.

Floridians Protecting Freedom submitted nearly 1 million signatures to put the issue on the November ballot. Supporters say the amendment is clear, but Attorney General Ashley Moody wants the court to reject the amendment because it doesn’t define terms like viability.

Justices grilled attorneys about the amendment’s wording.

Muñiz said it is “obvious that this is a pretty aggressive, comprehensive approach to dealing with this issue,” but he questioned whether the amendment’s sponsors should have referenced another part of the constitution that states in part that “all natural persons” have the “right to enjoy and defend life and liberty.”

“It kind of assumes that the constitution as it exists right now is silent as to any rights of the unborn, and I don’t know if that assumption is correct,” he said.

Courtney Brewer, an attorney representing Floridians Protecting Freedom, told Muñiz such a requirement would mean the amendment’s backers would need to wade “into an issue in the constitution that hasn’t even been flushed out before this court.”

“What you would be asking amendment sponsors to do is to think of all the ways that … another provision of the constitution might be interpreted and to somehow communicate that to the voters,” Brewer said, noting that the attorney general didn’t raise that issue in her arguments.

The Florida Supreme Court, which is dominated by conservative justices, has until April 1 to approve or reject the amendment. The high court is charged with evaluating proposed citizen ballot initiatives to determine if the language is clear, won’t mislead voters, and deals with a single subject.

Nathan Forrester, senior deputy solicitor general for the state, said the amendment would confuse voters because it isn’t clear it would “eviscerate” rather than limit “government interference with abortion.”

“I don’t think the ballot summary adequately discloses that potentiality,” he said. “Some voters may suss it out. Other voters will not.”

Justice Meredith Sasso questioned whether the amendment’s sponsors fully explained its ramifications.

“There’s two scenarios: Either the words are undefined and it’ll be played out later down the line, in which case the voters are not advised of that, or this has a very clear meaning and the voters are not advised that this is going to shift policymaking from the Legislature to this expert class of doctors to determine the conditions under which people can end lives in Florida,” she said. “So I am wondering why, if those are one of the two scenarios, why neither of those are explained to voters?”

Brewer responded that voters understand what is before them, and they deserve a chance to weigh in “when these decisions are taken away from health care providers and put in the hands of politicians.”

Justice John D. Couriel said the court is charged with determining whether the amendment’s backers are “hiding the ball in some meaningful way.”

“You’re saying, “This is a wolf,’ and wolf it may be,” Couriel said to an attorney opposing the amendment. “But it seems like our job is to answer whether it is a wolf in sheep’s clothing. That is all we get to do.”

Last year, Gov. Ron 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.

Floridians Protecting Freedom launched its efforts in May.

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