A law professor breaks down the legal ramifications of Florida's abortion and pot amendments

Florida voters will get to decide if abortion rights and recreational marijuana belong in the state constitution.

"Florida Matters" host Matthew Peddie spoke with Louis Virelli, a professor at Stetson University College of Law. He explained how the court was narrowly reviewing the language and not the politics behind the proposed amendments.

Listen to the interview using the media player or read excerpts from the transcript below (portions were edited for length and clarity):

Let's go back to the summary of the constitutional amendment on abortion. This reads as follows: "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 provided this amendment does not change the Legislature's constitutional authority to require notification to a parent or guardian before a minor has an abortion." Well, first of all, what's your reaction to the court's opinion on this amendment? Were you surprised? Were you kind of expecting it?

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The decision on the amendment is in line with what I expected. There are two essential ways to challenge a proposed amendment before the courts in Florida: one is to suggest that the amendment doesn't address a single issue. So in other words, it's sort of bootstrapping two questions together and what becomes a yes or no question for the voters. And we can see why that's complicated. If you ask me, "Did you enjoy your breakfast and your lunch?" And I'm asked to say yes or no, that can be confusing, because it may be one or the other. The other way to challenge is to suggest the language is vague. The Supreme Court explained that neither problem attaches to the abortion amendment here. The issue being addressed is, in fact, pretty straightforward. It's access to abortion before viability and when the health of a mother is at stake. There was some discussion about whether maternal health is different than elective abortion previability. But because the issue of abortion has been so well debated in America over the last 50 years, the court said that the single issue was actually access to abortion. It's not as narrow as elective abortion versus abortion to protect one's health. In terms of clarity, the court said the amendment describes what we understood the law to be from Roe and that voters will understand what they're voting for.

If you compare this amendment to others from the past, what's your take on the clarity of the language? Because that is something that can trip folks up even when they get the massive number of signatures that they need to get something on the ballot.

Well, I can say that when I first moved to Florida some 15 years ago and was first presented with a ballot containing constitutional amendments on it, I needed all of my law degree to understand what I was being asked in some cases. It can be very complicated, and sometimes it's because the questions, frankly, are complicated. This question isn't complicated. It is controversial, but it's not complicated. Do the voters of Florida want to protect abortion, previability, the way that Roe v Wade did for the previous 50 years?

What stands out for you about what you have been able to, kind of, process from their reasoning on why they said yes, this can go the ballot?

I think from my reading of the amendment decision, I think the court did its job in this case. Now, I will point out that it was a 4-3 decision. So three justices were not willing to allow this amendment to go to the voters. And I think that would have been really unfortunate. Florida has a constitutional amendment process that is robust. And for an issue like this, where the debate is always heated, and people care very much, what better way to find out how Florida should govern itself than asking its voters? So the fact that the court allowed that to happen and didn't preclude that from happening, I think is a really positive sign.

The Supreme Court also released its long-anticipated decision over a law banning abortions after a person's 15th week of pregnancy. What did their decision to uphold it say to you?

The decision to uphold the 15-week ban suggested to me that this court is unconcerned with precedent in Florida. It also indicated to me that this court is willing to revisit settled areas of law from a point of view that only it shares. The word privacy is in the constitution in a way it is not in the United States Constitution. In 1989, the Florida Supreme Court said unequivocally that that privacy clause covers the right to abortion. The Supreme Court [Monday] said that court was wrong, because it didn't read the text correctly. But what it really meant was, what this court really said was, it didn't read the text in a way that this court thinks aligns with its view of the world. And why I say that is because the arguments presented by the majority in the 15-week abortion ban case are sort of weak historical arguments. They are not textual arguments. And they pay no attention to the fact that in 1980, when this language was written, Roe was the law and abortion and privacy were virtually synonymous and a Supreme Court of Florida in 1989, that had all of the information this court had, and had every bit of authority to make this decision, quite confidently said this clause covers the right to an abortion. And the current Florida Supreme Court decided to do away with all of that reasoning, to start from scratch, which is not its prerogative and to decide what the right to be left alone means to it. And that is not the judicial role, or at least historically, in America. It is very much like what the U.S. Supreme Court did in overturning Roe.

Can we turn to the recreational marijuana opinion for a moment. Now this proposed amendment also passed the Supreme Court's muster. Your reaction to that?

it's very similar to my reaction to the abortion amendment in the sense that the types of challenges presented to that amendment were the same. Is it a single-issue question? And is it clear? But I'm not at all surprised that amendment was approved. And I think as a matter of law, it clearly should have been, it's very clear. It says that people 21 and over are permitted to use marijuana recreationally, they're permitted to possess 3 ounces or less of it, basically full stop. I mean, it's a very straightforward recreational marijuana amendment. We could argue about whether a constitution should have language about the legalization of marijuana and whether that's an important enough issue to be in the constitution of the state, but it's certainly permissible to be in the state of Florida. So I was not surprised to hear that the court upheld that amendment. And my previous sort of understanding and discussions about this issue led me to that conclusion also. So no surprises here.

Abortion and marijuana are both very high-profile issues and will make for a lot of political chatter. What would your advice be to voters as they consider these ballot proposals?

I think the one thing the Supreme Court of Florida absolutely did for us [Monday] is it shined a very bright light on the importance of the abortion amendment. Because we now know in Florida the stakes are quite clear. And it doesn't matter which side of the issue one is on. The stakes are equally clear for opponents and proponents of abortion rights. I mean, that is as follows: if this amendment doesn't pass, a six-week ban on abortions in Florida and effective outright ban on abortion in Florida will take effect. And that's something that people have to take seriously. So the best way, the only way really to contribute to this conversation, at this point is to vote. It is a rare opportunity to be able to vote on a constitution like this; it doesn't happen very often. And it certainly doesn't happen in other states very often.

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