Florida court weighs ballot measure to allow abortion 'before viability'

The Florida Supreme Court appeared reluctant Wednesday to prevent a proposed measure protecting abortion rights from appearing on the November ballot, even as several members of the conservative-leaning court questioned whether the measure's language could limit its potentially far-reaching impact. made clear.

The constitutional amendment would ask Florida residents to “limit government interference with abortion” before a fetus is considered viable, which is often around 24 weeks of gestation.

If the language summarizing the ballot initiative is not misleading, several justices have indicated, then it will be up to voters — not the court — to decide whether they agree with such a broad measure.

“The people of Florida are not stupid,” Chief Justice Carlos G. Muñiz said during a hearing in Tallahassee. “I mean, they can figure this out.”

Florida, the nation's third most populous state, was until recently a frequent destination for Southern women seeking abortions because the procedure could take up to 24 weeks. But in 2022, the state introduced a ban on abortion after fifteen weeks, and last year after six weeks.

Florida residents are awaiting a ruling from the state Supreme Court on the constitutionality of the 15-week ban. If the court confirms this, as expected, the way will be cleared for the six-week ban to come into effect.

The court's ideological balance has shifted in recent years, from liberal to conservative. Five of the seven current judges were appointed by Gov. Ron DeSantis, a Republican, who signed the two abortion bans.

Still, several justices on Wednesday rejected arguments from the ballot measure's opponents, led by the office of the state's Republican attorney general, Ashley Moody, that the language of the proposed amendment and its summary were overly broad, vague and misleading . Florida requires ballot questions to be clear and limited to a single topic.

The proposed amendment reads in part: “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the health of the patient, as determined by the patient's health care provider.”

“That is breathtakingly broad,” said Mathew D. Staver, an attorney for two groups opposing the measure, the anti-abortion Liberty Council and Florida Voters Against Extremism. The voters' group is preparing to campaign against the measure if it is approved.

“You say, 'This is a wolf,' and it could be a wolf,” Judge John D. Couriel said. “But it seems like it's our job to answer whether it's a wolf in sheep's clothing. That's all we can do.”

Supporters of the ballot measure see Florida as a key target in their campaign to expand abortion rights in the wake of the 2022 overturn of Roe v. Wade by giving voters a direct say in the matter.

Similar efforts in Kansas, Kentucky and Michigan have led voters in those states to retain or expand abortion rights. Efforts are underway in about a dozen other states, in addition to Florida, to put state constitutional amendments on the November ballot. Opponents in several states have tried to fend off the ballot measures by challenging their language.

Florida judges have until April 1 to rule on the constitutionality of the proposed measure's language. If the proposal is successful and placed on the ballot, it would need more than 60 percent support from voters to pass.

Floridians Protecting Freedom, an umbrella organization that includes Planned Parenthood and the American Civil Liberties Union, announced in January that it had collected enough petition signatures to get the measure on the ballot, pending review by the Supreme Court. The state has validated nearly 1 million signatures and labeled the measure as Amendment 4.

“This amendment follows the guidance of the U.S. Supreme Court in Dobbs that the people should decide how their state regulates abortion,” Courtney Brewer, an attorney with Floridians Protecting Freedom, told the court, referring to the 2022 decision that overturned Roe. “And in drafting the amendment and summary, the drafters followed the instructions of this court.”

Valerie Crowder contributed reporting from Tallahassee, Florida.