Abortion proposal on Florida's November ballot might not end legal fights about the issue

If Florida voters approve a November ballot measure that would enshrine abortion rights in the state constitution, it likely would not end legal battles about the issue.

At least that’s how three Florida Supreme Court justices see it.

The three justices, who dissented last week from allowing the proposed constitutional amendment on the ballot, wrote opinions warning about legal fights that will result if the measure passes. They contended, in part, that wording in the proposal about issues such as “health” and “healthcare provider” are vague.

Justice Jamie Grosshans, in a dissent joined by Justice Meredith Sasso, wrote that a ballot summary of the proposal “misleads by omission and fails to convey the breadth of what the amendment actually accomplishes — to enshrine broad, undefined terms in our Constitution that will lead to decades of litigation.”

Similarly, Justice Renatha Francis pointed to what she described as “vague and undefined terms” in the ballot title and likened the situation to the decades of legal battling that occurred before and after the U.S. Supreme Court’s Roe v. Wade abortion-rights decision in 1973.

“Just as it played out on the federal stage for over 50 years, the issue of abortion — far from the people settling the matter — will continue to be decided by each iteration of this (Florida Supreme) Court,” Francis wrote.

The court, in a 4-3 decision on April 1, approved allowing the proposed amendment to go before voters. Justices are not supposed to evaluate the merits of proposed amendments but look at whether the wording of ballot titles and summaries — the wording that voters see when they go to the polls — meets legal tests for clarity and single subjects.

The majority opinion said the proposed abortion measure met the tests.

“That the proposed amendment’s principal goal and chief purpose is to limit government interference with abortion is plainly stated in terms that clearly and unambiguously reflect the text of the proposed amendment,” the opinion, shared by Chief Justice Carlos Muniz and Justices Charles Canady, Jorge Labarga and John Couriel, said. “And the broad sweep of this proposed amendment is obvious in the language of the summary. Denying this requires a flight from reality. We acknowledge that the text of the amendment — like any legal text — presents interpretive questions, but we neither endorse nor reject any litigant’s assertions about how the proposed amendment might be interpreted in the future and our decision today takes no position on the scope of legislative discretion that would remain if the proposed amendment were to become law.”

The political committee Floridians Protecting Freedom launched the amendment drive last May, after Gov. Ron DeSantis and the Republican-controlled Legislature approved a measure to prevent abortions after six weeks of pregnancy. In a separate ruling last week, the Supreme Court said a privacy clause in the state Constitution does not protect abortion rights — effectively allowing the six-week limit to take effect May 1.

The abortion issue will lead to a massive political fight in the coming months, with the proposed amendment needing support from 60 percent of voters to pass.

In part, the 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.”

While the court’s majority said the wording met legal tests, other constitutional amendments have ended up in litigation after getting voter approval.

For example, voters in 2018 passed a constitutional amendment that required restoring voting rights of felons “upon completion of all terms of sentence including parole or probation.” The Legislature and DeSantis in 2019 approved a law to carry out the amendment and required felons to complete all financial terms of their sentences --- including paying fines, fees, costs and restitution --- to be eligible to vote.

That interpretation blocked many felons from getting their rights restored and led to litigation. The 2019 law remains in place.

DeSantis, Attorney General Ashley Moody and Republican legislative leaders have criticized the proposed abortion rights amendment. The three dissenting justices last week focused, in part, on terms such as “health,” “healthcare provider” and “viability.”

“‘Health’ and ‘healthcare provider’ have obviously broad and undefined boundaries which are seemingly unlimited without the benefit of a technical, legal analysis,” Sasso wrote in a footnote in a dissent joined by Grosshans and Francis.

But another issue that could emerge is the potential interplay between the abortion-rights amendment and another long-existing part of the Constitution that says, “All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness.”

During oral arguments in February on the abortion-rights proposal, Muniz raised questions about the existing part of the Constitution and “rights of the unborn.”

A footnote in last week’s majority opinion also cited the issue and partially quoted an argument raised in Grosshans’ dissent.

“It is also suggested that the voters should be informed that the proposed amendment ‘could, and likely would, impact how personhood is defined for purposes of Article I, Section 2 of our Constitution,’” the footnote said, referring to the part of the Constitution about natural persons. “The constitutional status of a preborn child under existing Article I, Section 2 presents complex and unsettled questions.”

The group Public Rights Project, which filed a brief at the Supreme Court in support of the abortion-rights amendment, issued a statement last week raising concerns about the court’s reference to personhood. The group said the decision “to allow abortion on the ballot is a win for abortion rights, democracy, and for Floridians being able to express their wills at the polls come November.”

“But references to potential fetal personhood rights in the Florida Supreme Court's decision signal the seven justices' openness to overriding the will of voters in a future legal challenge brought by anti-choice groups,” Jill Habig, the group’s founder and president, said in a prepared statement. “This legal strategy is playing out in Florida and other states where the right has captured the courts through judicial gerrymandering and other means.”

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