Florida abortion rights groups are heading to the state Supreme Court this week as part of their effort to put abortion protections on the ballot in November.
The court will hear arguments Wednesday about whether the ballot measure language meets state rules, the final hurdle to clear before the question can be put to voters. It needs to issue a ruling by April 1.
Supporters have already gathered enough signatures to qualify for the ballot, and the state division of elections officially designated it as Amendment 4, pending Supreme Court review.
If successful, the measure could undo the state’s abortion bans and would be a significant blow to Gov. Ron DeSantis (R) and conservative legislators, who have tightened the rules to make it more difficult for groups to launch successful ballot measures.
Florida is one of a handful of red and purple states where groups are pushing to get measures on the ballot in 2024 that would protect access to abortion, following a streak of wins for similar measures in Kansas and Ohio.
Florida currently bans abortions after 15 weeks of pregnancy. It also prohibits abortions at six weeks, though that law hasn’t yet been enacted.
Abortion rights advocates are confident that the measure will make it on the ballot, and legal experts say the topic shouldn’t matter. The court is only supposed to consider whether the question is about a single subject and whether the language accurately describes what the amendment will do.
But the court is extremely conservative and openly hostile to abortion. Five of the seven Supreme Court justices were appointed by DeSantis, and in a separate case, they appear poised to uphold the 15-week ban.
Attorney General Ashley Moody (R) launched an aggressive fight against the measure. Along with anti-abortion groups, she will argue the ballot language is unclear and misleading, and the court should disqualify it.
If approved, the language on the ballot would read in part: “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.”
In her initial brief filed at the end of October, Moody said the amendment was an attempt to “hoodwink” voters into approving a framework that will allow essentially unrestricted abortions.
“The ballot summary … is part of a similar overall design to lay ticking time bombs that will enable abortion proponents later to argue that the amendment has a much broader meaning than voters would ever have thought,” Moody wrote.
Moody specifically took issue with the words “healthcare provider,” “viability” and “health.”
According to Moody, “viability” can have more than one meaning, and backers will push for even looser abortion rules. Moody wrote the amendment’s language would give health providers the power to decide both what constitutes “viability” of a pregnancy and whether the “health” of the pregnant person justified a late-term abortion.
In a later brief, she added that if the court chooses to approve the amendment, it should make clear that “the legislature, executive, and judiciary retain their traditional constitutional roles” in defining and enforcing viability and health.
But in a brief supporting the amendment, a group of former Republican officials led by ex-Lt. Gov. Jennifer Carroll said the state was asking the court to impose a much higher bar for review than in any other ballot measure to date.
“The power of the people to decide for themselves what their fundamental law should be is so valued in Florida that courts exercise extreme restraint before blocking citizen initiatives from reaching Floridians,” the officials wrote.
“Whether one supports abortion is irrelevant, the constitutionally protected citizens’ initiative process should move forward and the initiative should reach the people, as the U.S. Supreme Court in Dobbs suggested, so that the people themselves can decide the issue,” the officials wrote.
Supreme Court review of a ballot measure is standard procedure in Florida, and oral arguments are common if the state opposes it.
Lauren Brenzel, campaign director for Floridians Protecting Freedom, the primary coalition behind the abortion amendment, noted that the attorney general’s office filed official challenges against a host of recent ballot measures including recreational marijuana, restoring voting rights of former felons, and increasing the minimum wage.
All of them made it past Supreme Court review and were passed by voters.
“If you look at our language, it was written to be read by an eighth grader, and it was written to use words that are familiar with people that have definitions in Florida statutes,” Brenzel said.
“So these are all political arguments more than they are legal arguments, and I think it shows that [the state] is having to do some mental gymnastics to even talk about the ways in which this language should be thrown out. Because the reality is, this language is ready for voters,” Brenzel added.
Even with a 15-week ban, Florida has become a haven for women seeking abortions from other states with even stricter laws. That’s why it’s so essential the measure to protect abortion makes it to the ballot, Brenzel said, because the specter of a six-week ban is looming.
“If access to care is lost in Florida, the implications of that will be devastating. There will be nowhere feasible for 78,000 patients to go,” Brenzel said. “We’re just hoping that we can see a real respect for the constitution and constituents in the state of Florida coming out of this process.”