Abortion was once again an issue in front of the Florida Supreme Court in Tallahassee as oral arguments were given for and against a citizen initiative to add an abortion amendment to the state constitution.
The ballot summary of the would-be amendment states: “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.
“This amendment does not change the legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”
Despite the nearly 1 million petition signatures and millions of dollars spent to get them, it will be up to the Supreme Court whether voters will find this amendment on their ballots in November.
“The chief purpose that is not communicated by the amendments, the proposed amendment, is that we would be enshrining in constitutional cement ... abortion without restriction for the entire ... nine-month pregnancy,” Justice Renatha Francis said to Courtney Brewer, representing the amendment’s sponsor, Floridians Protecting Freedoms, on Feb. 7.
“Your honor, I don’t know how an amendment could better communicate ... its chief purpose via a summary than by putting the language of the amendment in the summary,” Ms. Brewer said.
Against Ms. Brewer’s initiative was Mat Staver, chairman of Liberty Counsel, who represented Florida Voters Against Extremism, and Florida Senior Deputy Solicitor for the Attorney General Nathan Forrester.
They argued the court should strike down the ballot initiative because of its misleading and vague language and its violation of the single-subject rule.
Mr. Staver told The Epoch Times that the ballot initiative, instead of being an amendment for a single subject of permission, was a multitude of subjects of restriction on the state’s government and looked to instill in the state constitution an authority backing unrestricted abortion access that supersedes all three branches of government.
Single-subject amendments proposed through a citizen initiative cannot substantially alter the functions of the three branches of government, he said.
“The breadth of those four words, ‘prohibit, penalize, delay, and restrict’—nothing with regards to abortion—really disables all three branches of government, and those cases will come before this court,” he said to the court.
“But when you read, ‘no law shall restrict,’ and there’s a law before you that has restricted prior to viability, it’s going to be struck down.
“It’s a total abolition of all the functions of those three branches of government with regards to the issue of abortion.”
Meanwhile, Mr. Forrester argued that the language of the summary was too vague and, in one instance, “literally untrue.”
“It promises that after the amendment, ‘no law shall prohibit, penalize, delay, or restrict’ abortion in either of two circumstances: before viability or when necessary to protect the patient’s health,” he said.
“Point of fact, federal law—the partial-birth abortion ban act—already does restrict abortion in both the circumstances and will continue to do so.”
He also, when pressed by the justices for clarification, argued that the initiative’s sponsors—as well as any sponsors of any legislation, including legislatures—should be required to put forth a summary that properly explains to the voters what the new amendment would do.
“That may have an upstream effect on what sponsors are able to propose in the sense that it may make it more difficult to compose texts that adequately explain an ambiguous term, but that is their burden,” Mr. Forrester said.
Both men received some pushback from the justices.
“You’re saying this is a wolf,” Florida Supreme Court Justice John D. Couriel said to Mr. Staver. “And a wolf it may be. But it seems like our job is to answer whether it is a wolf in sheep’s clothing. That’s all we get to do.”
Responding to Mr. Forrester’s comments, Chief Justice Carlos Muniz said: “It seems ... you’re sort of inviting us to give a legal effect to the summary that’s kind of inconsistent with the way we view the law in general.”
Justice Charles Canady bluntly asked whether a ballot summary could be “less ambiguous” than the amendment’s text since it is summarizing.
The wording of the ballot summary was taken directly from the language of the proposed amendment, which, Mr. Staver pointed out, uses 49 words of the 75-word allowance. And the justices had some concerns of their own about the summary.
Justice Couriel pointed out that among the broad list of professions listed under “healthcare provider,” tattoo artists are included, and pointed out that the summary includes parental notification but has no requirement for parental consent when it comes to abortions for minors.
He also asked whether there were any contradictory concerns, saying, “Causing someone to go to a licensed clinic might be a delay, as opposed to, I don’t know, using some abortive fashion at home.”
Justice Meredith Sasso asked whether voters would understand the meaning and legal effect of how words such as “viability” and “patient’s health” were used and whether voters would understand that this amendment doesn’t include some sort of built-in limitation such as a standing ban after 21 weeks.
“There’s two scenarios,” Justice Sasso said. “Either the words are undefined, and it'll be played out later down the line—in which case the voters are not advised of that—or this has a very clear meaning and the voters are not advised of the fact that this is going to shift policymaking from the legislature to this expert class of doctors to determine the conditions under which people can end lives in Florida.
“And so I’m wondering why, if those are one of the two scenarios, then why neither of those are explained to the voters.”
Ms. Brewer adamantly rejected the concerns.
“It’s explained to the voters because the language of the amendment is clear,” she said. “The court has not required definitions before of terms that voters would understand in the context in which they are.”
Ms. Brewer also argued the language would be understood because of the summary’s use of “ordinary rules of grammar” and the term “viability” becoming “part of the cultural fabric of our nation.”
“The people of Florida aren’t stupid,” Chief Justice Muniz said, admitting the summary to be “self-evidently broad.”
“I mean, they can figure this out. I think there may be a problem as to what it doesn’t say.”
But Mr. Forrester wasn’t satisfied.
60 Percent Required
The court is expected to decide by April 1 whether the amendment will be allowed on the ballot.Mark Minck, state chairman of Protect Human Life Florida, spoke with The Epoch Times about the citizen initiative process, having gone through it himself attempting to qualify the Human Life Protection Amendment for a ballot.
If the court allows it on the ballot, the proposed amendment would require 60 percent of the state’s popular vote to be adopted.
“If, on the other hand, the Florida Supreme Court decides that their language is unclear and/or ambiguous enough to prevent them from appearing on the 2024 ballot, then they are done for this cycle,” he said.
“There is no provision available to them to appeal or rewrite their language in an attempt to qualify for ballot placement this November.”
And if that is the case, and he said he suspects it could be because of the phrase “or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider,” he said he thinks ”they'll decry the court’s decision as some sort of conservative activism from the bench, stirring the angst of their base in the process, rewrite their language,” and try again.
“This time, however, they’ll have more time, will raise even more money, and will secure twice as many signatures in their attempt to secure placement on the 2026 midterm ballot,” he said.
“Ultimately, however, I believe they will fail to dupe enough voters into going along with their deadly proposal to secure the 60 percent required.”
Pro-life Floridians also appear confident in the state’s ability to strike down any abortion initiative that gets on the ballot.
“It’s going to be a battle royale,” Andrew Shirvell, founder of Florida Voice for the Unborn, told The Epoch Times. But he added that variables are wavering toward the pro-life side.
Florida Voice for the Unborn held an organized rally on the steps of the Supreme Court in Tallahassee during the proceedings.
He said it’s going to take unity of the movement and the support of Gov. Ron DeSantis and all of the other Florida Republicans coming out against the amendment.
Chief Justice Muniz referenced previous cases of abortion and homicide law and asked both sides whether—despite no clear decision being made—there was a clear history of unborn children being treated with some level of personhood.
“This proposal kind of assumes that the Constitution is currently silent on that issue,” he said. “If that assumption is wrong, then it seems like it might have implications for what we need to do.”
Mr. Forrester admitted to not considering the argument of whether or not unborn children were protected under the Florida Constitution as a “natural person,” but he also admitted to seeing the potential for that argument to be made.
The chief justice asked Ms. Brewer, “Does our case law stand for the proposition that if you’re going to substantially alter an existing part of the Constitution, it needs to be identified for the voter?”
Then he asked more directly, “Can we say as a matter of law that the term ‘all natural persons’ excludes unborn children?”
She responded, “I don’t think there’s any authority under Florida law to say that it does include the unborn.”
