Florida Supreme Court justices sharply question state on abortion ballot measure

Florida’s Supreme Court justices appeared skeptical of the state’s arguments Wednesday that the language on a ballot initiative to protect abortion rights was misleading. 

Nathan Forrester, who argued on behalf of the state attorney general’s office, urged the court to disqualify the measure.

He said voters won’t understand what the amendment will do because the language used to describe it was too broad and had an “enormously wide range of meanings.” 

But several justices immediately questioned Forrester’s contention. The amendment may be sweeping in what it proposes, they said, but that’s an argument the state should make to voters, not the court. 

“It’s pretty obvious that this is an aggressive, comprehensive approach to dealing with this issue. The people of Florida aren’t stupid. They can figure this out,” Chief Justice Carlos Muñiz said.  

“It seems like to me all these things need to be argued about in the political process, because otherwise it’s a restriction on the substance of what can be proposed. We’re not given the power in the constitution to impose such a restriction,” Justice Charles Canady said. 

Muñiz noted it will likely be up to the court to determine the limits of the amendment if it passes. 

“There’s no possible way a summary could tick through all these different variables and possible implications. … The summary says what it says. People can see for themselves if it’s too broad or vague or whatever,” Muñiz said.  

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Courtney Brewer, arguing on behalf of the initiative sponsor group Floridians Protecting Freedom, said the summary’s language was easy to understand. 

“There is no question that voters understand what viability means in the abortion context. This is a term and its meaning that have become a part of the cultural fabric of our nation,” she said.

Florida’s Supreme Court acts as a gatekeeper for ballot measures. Once a measure gathers enough signatures to qualify, the court is charged with determining that the language that will appear on the ballot is only about one subject and won’t confuse voters. The court is not supposed to rule on the merits of a measure.

The amendment would establish a right to abortion to the point of fetal viability, which would be determined by health providers but is usually around 22 to 25 weeks of pregnancy. 

If a measure makes it to the ballot, it needs to reach a 60 percent threshold to be approved. Citizen-led ballot initiatives face a steep path to getting on the ballot, as the GOP-majority Legislature has changed requirements over the years to make it more difficult.  

Gov. Ron DeSantis (R) also appointed five of the seven justices, shifting the balance of the state Supreme Court and leading to more measures being rejected.  

But the toughest questions and comments Wednesday were directed at opponents of the measure. 

“You’re saying this is a wolf. And a wolf it may be, but it seems our job is to say whether it’s a wolf in sheep’s clothing. That’s all we get to do,” Justice John Couriel said.  

“This may be as sweeping as you say, it may be that it wipes away all regulation of abortion. … We may find that very persuasive from the standpoint of whether or not to vote in favor of the amendment. But … the question before us is, is this hiding a ball in some meaningful way, or can voters look at this and say, that’s sweeping and we shouldn’t approve this?” Couriel added. 

Still, the justices also made clear that a separate case involving the state’s 15-week abortion ban is intertwined with the amendment. 

Muñiz raised the issue of fetal personhood and whether voters would understand the practical impact of the amendment, because the court hasn’t taken a position on whether the constitution protects “an unborn child at any stage of pregnancy.”  

The court in September heard arguments challenging the constitutionality of the current abortion ban but has not yet issued a ruling. If the current ban is upheld, a separate six-week ban would then be triggered.

If the amendment passes, it would effectively reverse the 15-week ban as well as the pending six-week cutoff. 

Even with a 15-week ban, Florida has become a haven for women seeking abortions from other states with even stricter laws, so any change in policy would be felt across the Southeast.