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Florida Supreme Court weighs arguments over wording of abortion ballot initiative

Liberty Counsel founder and Chairman Mathew Staver speaks to reporters in front of the Florida Supreme Court after telling justices a proposed amendment to protect abortion rights should be kept off the ballot on Wednesday, Feb. 7, 2024, in Tallahassee, Fla. (AP Photo/Brendan Farrington)
Brendan Farrington
Liberty Counsel founder and Chairman Mathew Staver speaks to reporters in front of the Florida Supreme Court after telling justices a proposed amendment to protect abortion rights should be kept off the ballot on Wednesday, Feb. 7, 2024, in Tallahassee.

State lawyers say voters won't realize just how far the amendment will expand access to the procedure. Justices seemed to think voters will clearly see that it would keep the state from restricting most abortions.

Lawyers trying to keep an abortion-rights measure off the Florida ballot told the state Supreme Court on Wednesday that the proposed amendment is deceptive, and that voters won't realize just how far it will expand access to the procedure.

But the justices seemed to think the proposed ballot question isn't so much a wolf in sheep's clothing, but rather a clear effort to keep the state from restricting most abortions.

“This is a wolf coming as a wolf,” said Chief Justice Carlos Muniz, one of five appointees of Republican Gov. Ron DeSantis on the seven-member court. “The people of Florida aren't stupid. They can figure it out.”

The court has made clear that it's role is not to rule on the content of the proposed amendment, but rather the wording - whether it is properly focused on a single subject and whether voters will understand what they're voting on.

The proposed amendment says “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.” It provides for one exception, which is already in the state constitution — that parents must be notified before their minor children can get an abortion.

Lawyers for Attorney General Ashley Moody and the religious freedom group Liberty Counsel told justices it would essentially ban any restrictions whatsoever.

“This amendment should not be approved because it violates the single-subject rule. There are four words that doom this amendment: ‘no law shall restrict.’ That is breathtakingly broad, and it substantially disrupts the functions of all three branches of government,” Liberty Counsel Chair Mat Staver said.

Nathan A. Forrester, a senior deputy solicitor general in Moody’s office, contended that the proposal is misleading in several ways.

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

Proponents of the proposed amendment say the language of the ballot summary and the proposed amendment are concise and that Moody is playing politics instead of letting voters decide whether to protect access to abortions.

“The language of the summary and the amendment are clear and unambiguous," Courtney Brewer, a lawyer for Floridians Protecting Freedom, told reporters after the hearing. "Florida voters will be able to understand that, and I am confident based on the court’s questioning today that they understand that as well."

The group gathered nearly 1 million voter signatures, well more than the 891,523 needed to make the ballot.

“The state of Florida through the Legislature, through the executive and also through the courts will have no ability to protect women or regulate any aspect of abortion,” Staver told reporters after the arguments. “It is a free-for-all. It's total deregulation of abortion, which is frankly deceptive.”

Justices have until April 1 to decide on the proposal.

Florida is one of several states where voters could have a direct say on abortion questions this year.

There has been a major push across the country to put abortion rights questions to voters since the U.S. Supreme Court overturned Roe v. Wade and removed the nationwide right to abortion, leaving such decisions to states.

Referendums to guarantee abortion rights are set for Maryland and New York, and activists on both sides of the issue in at least seven other states are working to get measures on 2024 ballots.

The case also tests whether DeSantis, who also appointed all three of the women on the bench, has changed the direction of a court that in past years has interpreted a privacy clause in the state constitution to strike down some abortion restrictions.

If the question is allowed on the ballot, 60% of voters would have to approve it.

Both sides of the debate also are waiting on the Florida Supreme Court to rule on whether to uphold a 15-week abortion ban passed two years ago. Last year, lawmakers went further and passed a ban at six weeks, which is before many women even know they are pregnant, but that law won't take effect if the court throws out the 2022 ban signed by DeSantis.

Any change in abortion access in Florida would be felt out of state as well because the Sunshine State traditionally has been a haven for women in the southeastern U.S. seeking abortions. Nearby Alabama, Louisiana and Mississippi ban abortion at all stages of pregnancy. Georgia and South Carolina prohibit terminating pregnancies once cardiac activity can be detected.

More than 100 people on each side of the issue gathered on the steps of the court before the hearing, with many people crowding into the full-to-capacity courtroom to listen to arguments.

Information from News Service of Florida was used in this report.