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Florida justices raise questions over proposed abortion amendment

Proponents are trying to get the amendment, which would protect abortion until viability, on 2024 ballots.
 
People gather outside the Florida Supreme Court, where justices heard arguments on a proposed ballot issue regarding abortion on Wednesday in Tallahassee.
People gather outside the Florida Supreme Court, where justices heard arguments on a proposed ballot issue regarding abortion on Wednesday in Tallahassee. [ BRENDAN FARRINGTON | AP ]
Published Feb. 7|Updated Feb. 7

TALLAHASSEE — Florida’s Supreme Court justices on Wednesday questioned whether a proposed amendment that would restore broader abortion access was “a wolf in sheep’s clothing.”

The amendment would protect abortion until viability, which is estimated to be at about 24 weeks. It would undo Florida’s current ban on abortions after 15 weeks of pregnancy and negate a six-week ban that lawmakers approved to take effect pending the outcome of an ongoing court case.

But whether the proposal appears on the 2024 ballot hinges on the conservative seven-member Florida Supreme Court.

Attorney General Ashley Moody and anti-abortion groups challenged the amendment, saying its language is misleading and that it would usher in sweeping consequences that would not be clear to the voter.

But the group behind it, Floridians Protecting Freedom, argued that voters are “perfectly capable of reading the language and understanding it.” Whether they like the effects of the proposal would be someone’s decision in the voting booth, an attorney for the group said during oral arguments Wednesday.

The text of the amendment says in part that “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.”

Justices grilled attorneys on both sides of the issue, while outside the court, some protesters held up signs urging the justices to “let us vote” while others held placards saying that “Enshrining Abortion in the Florida Constitution is WRONG!”

Mat Staver, an attorney for Liberty Counsel, which opposes the amendment, said the proposal would substantially disrupt abortion regulation, making it difficult for the state to monitor abortion as it does for other health care procedures.

Staver said if allowed to stand, the language would effectively undo any and all abortion laws or regulations that exist, and could tie the hands of the court.

“It’s a total abolition of all the functions of those three branches of government with regards to the issue of abortion,” Staver said.

“You’re saying this is a wolf, and a wolf it may be, but it seems like our job is to answer whether it’s a wolf in sheep’s clothing,” said Justice John Couriel, who is one of the five justices appointed by Gov. Ron DeSantis. The justices are tasked with ruling whether the ballot language is misleading and whether it deals with multiple subjects instead of only one.

Justices asked Courtney Brewer, an attorney representing the group supporting the amendment, whether voters will have enough information to understand the effect of the ballot language.

Chief Justice Carlos Muñiz at one point said the amendment didn’t seem like it was “really trying to be deceptive,” and said voters could decide if they wanted something more nuanced.

When Muñiz asked if Brewer was saying the amendment was a “wolf that comes as a wolf,” she said yes.

“If voters don’t agree with that they will have the opportunity to vote against it,” she said. “The arguments about what this amendment will do, this is not the time and place for that.”

Nathan Forrester, an attorney for the attorney general’s office, argued that the amendment’s title, which says it would “limit” government interference with abortion, is “understated to the point of deception” and that the ballot summary is unclear as to its effects.

“The people of Florida aren’t stupid, and they can figure this out,” Muñiz responded. “I think there may be a problem as to what it doesn’t say.”

Muñiz, who was also appointed by DeSantis, asked both sides whether unborn children have the same constitutional rights as people in Florida law, and whether that would prohibit the amendment or affect it. Forrester, of the attorney general’s office, said it wasn’t an argument he had considered, and Brewer, representing the amendment, said it wasn’t an argument before the court.

Andrew Shirvell, the executive director of Florida Voice for the Unborn, said he knew the discussion in oral arguments would be difficult but said he was praying for the justices to disqualify the amendment.

He said if the court does not, “it will actually discredit this conservative court that Gov. DeSantis has built.” His group plans to create a political committee to oppose the amendment if it does make it onto the ballot.

House Democratic leader Fentrice Driskell, after the arguments, said she thought the court was not impressed with the state’s presentation.

“The plain language is very clear and a common voter can understand it,” Driskell said.

If the amendment makes it onto the ballot, 60% of Florida voters would need to support it to be enacted. About 1 million voters signed petitions to get the amendment on the ballot during a push backed by groups like Planned Parenthood and the ACLU of Florida.