Florida Supreme Court to decide if abortion protections will appear on November ballot

The Florida Supreme Court is weighing whether a proposed amendment to enshrine abortion rights in the state constitution can appear on the state’s November ballot.

At a hearing on Wednesday, the court’s seven conservative-leaning justices — five of whom were appointed by Republican Gov. Ron DeSantis — heard arguments from attorneys representing the Florida attorney general and Florida Voters Against Extremism, which oppose the language in the ballot summary, and the amendment’s sponsor, Floridians Protecting Freedom, which maintains that its ballot summary language is clear.

Since the U.S. Supreme Court overturned Roe v. Wade, which established abortion as a constitutional right, in 2022 and left it to states to decide on the issue, abortion rights supporters have focused on enshrining reproductive health rights in state constitutions through ballot initiatives.

In the six instances that abortion-related amendments have been put on the ballot so far, voters have sided with abortion rights supporters every time, including in red states like Kansas and Kentucky. Passage of the measure under consideration in Florida would mark another win for abortion rights advocates, signaling that the Republican Party’s victory in overturning Roe is being undone one state at a time.

What are Florida’s current abortion laws?

As of Feb. 7, abortion is legal in Florida until 15 weeks of pregnancy and there are no exceptions for victims of rape or incest. But the state Supreme Court is weighing whether a more restrictive six-week ban can take effect.

If passed, what would the amendment do?

The amendment would overturn Florida’s abortion restrictions, including limits on how far along into a person’s pregnancy they can have the procedure and other cumbersome requirements like waiting periods and forced ultrasounds before the procedure. Under the amendment, minors seeking an abortion would still need to get their parents to sign off on it.

If the amendment is passed, it could also expand abortion access beyond Florida, as neighboring states like Georgia and Alabama have laws either banning abortion completely or after six weeks, which is before many women even know they are pregnant.

What is the Florida Supreme Court being asked to do?

The justices are being asked to consider whether the measure pertains to a single issue and whether the summary that would appear on the ballot clearly describes what the proposed amendment would do, as Florida state law requires.

Attorney Nathan Forrester, representing Florida’s attorney general, said in his opening statement, “The proposed amendment here should not be placed on the ballot because it is misleading in multiple respects” and urged the justices to disqualify the amendment.

“The people’s right to amend their state’s constitution is fundamental to our state’s democracy,” said Courtney Brewer, the attorney representing Floridians Protecting Freedom. “This amendment follows the directive given by the U.S. Supreme Court in Dobbs that the people should decide how their state may govern abortion.”

How would the ballot initiative be presented to voters?

The initiative, if allowed to move forward, would appear on the Florida ballot under the title “Amendment to Limit Government Interference with Abortion.” Below that, voters would be presented with the following summary of the amendment they’re being asked to vote on: “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. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

Marking “yes” on the ballot would indicate support for establishing a state constitutional right to abortion before a fetus is viable.

Marking “no” on the ballot would indicate opposition to establishing a state constitutional right to abortion before a fetus is viable.

The full text of the proposed amendment can be read here.

What are the arguments from both sides?

Florida Attorney General Ashley Moody argues that the ballot summary doesn’t clearly state what the sweeping implications would be if voters approved the amendment.

“The ballot summary vastly understates the potentially sweeping scope of the amendment, by failing to explain what ‘viability,’ ‘health,’ or ‘healthcare provider’ means, and by not disclosing that a ‘healthcare provider’ might have power to determine when a baby is viable,” Moody stated in her initial brief.

Viability is generally understood to be at about 24 weeks of pregnancy, when a fetus could survive outside of the womb, but it can vary depending on the health conditions of the fetus or parent.

Meanwhile, Floridians Protecting Freedom maintains that its proposed amendment is clear enough for Florida voters to understand the implications of the ballot measure.

“There is no question that voters understand what viability means in the abortion context,” Brewer told the justices. “Its meaning [has] become a part of the cultural fabric of our nation ... I think that the voters are perfectly capable of reading this language and understanding it.”

What other states could have abortion measures on the 2024 ballot?

Voters in New York and Maryland will decide on constitutional amendments to enshrine reproductive health rights in their state constitutions.

Nine other states, including Arkansas and South Dakota, could also have abortion measures on the ballot this November.

What’s next?

The Florida Supreme Court will need to make a decision on the matter by April 1.

If the abortion measure ends up making it onto the ballot, a 60% supermajority is needed in order for the amendment to be added to the state constitution.