Taza Khabre

Florida court weighs ballot measure to allow ‘pre-viability’ abortion

Florida’s Supreme Court appeared reluctant Wednesday to block 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 made clear its potentially far-reaching effects.

The constitutional amendment would ask Floridians to “limit government interference in abortion” before a fetus is considered viable, which is often around 24 weeks’ gestation.

If the language summarizing the ballot initiative isn’t misleading, several judges said, then it would be up to voters — not a 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 the hearing in Tallahassee. “I mean, they can figure it out.”

Florida, the nation’s third most populous state, was until recently a frequent destination for Southern women seeking abortions because it allowed the procedure up to about 24 weeks. But in 2022, the state introduced a ban on abortion after 15 weeks, and last year a ban after six weeks.

Florida residents are awaiting a state Supreme Court ruling on the constitutionality of the 15-week ban. If, as expected, the court confirms this, it would pave the way for the six-week ban to take effect.

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

Even so, several judges on Wednesday rejected arguments by opponents of the ballot measure, led by the office of state Republican Attorney General Ashley Moody, that the language of the proposed amendment and its ballot summary was too broad, vague and misleading. Florida requires that ballot questions be clear and limited to one topic.

The proposed amendment reads 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 health care provider.”

“It’s stunningly broad,” said Mathew D. Staver, a lawyer for two groups opposing the measure, the anti-abortion Liberty Counsel and Florida Voters Against Extremism. A group of voters is preparing to campaign against the measure if it is approved, arguing that such a change would effectively ban all restrictions on abortion.

“You say, ‘This is a wolf,’ and maybe a wolf,” Judge John D. Couriel said. “But it seems our job is to answer whether it’s a wolf in sheep’s clothing. That’s all we have to do.” ”

Ballot measure advocates see Florida as a prime target in their campaign to expand abortion rights after Roe v. Wade is overturned in 2022, giving voters a direct say on the issue.

Similar efforts in Kansas, Kentucky and Michigan led to voters retaining or expanding abortion rights in those states. Efforts are underway to put state constitutional amendments on the November ballot in a dozen other states besides Florida. Opponents in several states tried to push back against the ballot measures by questioning their language.

Florida judges have until April 1 to rule on the constitutionality of the proposed measure’s language. If it passes and is placed on the ballot, it would need more than 60 percent voter support to pass. The measure would maintain a requirement, already in the Florida Constitution, that parents of minors be notified if a minor seeks an abortion.

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 put the measure on the ballot, pending Supreme Court review. The state verified almost a million signatures, and labeled the measure as Amendment 4.

At Wednesday’s hearing, several judges raised other legal points. Chief Justice Muñiz questioned whether the measure could affect the rights of the fetus, although neither side raised a “fetal personhood” argument in the case. Justices Meredith L. Sasso and Renatha Francis asked whether “durability” is too vague a term and whether lawmakers will have a say in defining it or whether it will be strictly up to health care professionals.

Courtney Brewer, an attorney with Floridians Protecting Freedom, said voters understand what viability means in the context of abortion — it refers to the point in a fetus’s development when it is capable of surviving outside the womb — and that determining viability has traditionally been left to health care professionals.

“This amendment follows the directive of the US Supreme Court in Dobbs that the people should decide how their state governs abortion,” Ms. Brewer told the court, referring to the 2022 decision that overturned Roe. “In both the drafting of the amendment and the summary, the drafters followed the directions given by this court.”

Outside the courthouse, about 200 protesters held a press conference in matching suits, some with signs reading “Enshrining abortion in the Florida constitution is wrong!” and others saying “Let’s vote!”

State Representative Mike Beltran, a Republican from Riverview, near Tampa, said after the hearing that he thought it was unlikely the justices would block the ballot measure. Mr. Beltran has sponsored a bill to ban nearly all abortions in the state, but it is not expected to pass this year.

“We need to get out there and educate people about how sweeping and extravagant this proposed amendment is,” he said.

Trenece Robertson, a 24-year-old Florida A&M University senior who is originally from Louisiana, said she had an abortion in Florida in 2019, after Louisiana largely banned the procedure after the first six weeks of pregnancy. She said she helped collect several hundred petition signatures for the measure in Florida.

“Florida,” she said, “is the last safe haven for reproduction in the South.”

Valerie Crowder contributed reporting from Tallahassee, Florida.

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