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Florida court weighs ballot measure to allow abortion 'before viability'

People gather outside the Florida Supreme Court, where justices will hear arguments on a proposed ballot issue regarding abortion on Wednesday, Feb. 7, 2024 in Tallahassee, Fla.
Brendan Farrington
People gather outside the Florida Supreme Court, where justices will hear arguments on a proposed ballot issue regarding abortion on Wednesday, Feb. 7, 2024 in Tallahassee, Fla.

MIAMI — The Florida Supreme Court seemed reluctant Wednesday to block a proposed measure protecting abortion rights from appearing on the November ballot, even though several members of the conservative-leaning court questioned whether the measure’s language made clear its potentially sweeping effects.

The constitutional amendment would ask Floridians to “limit government interference with abortion” before a fetus is considered viable, which is often around 24 weeks of pregnancy.

If the language summarizing the initiative on the ballot is not deceptive, several justices indicated, then it would be up to voters — and not the court — to decide whether they agree with such a broad measure.

“The people of Florida aren’t stupid,” Chief Justice Carlos G. Muñiz said during a hearing in Tallahassee. “I mean, they can figure this out.”

Florida, the nation’s third-most-populous state, was until recently a frequent destination for women from the South seeking an abortion, because it allowed the procedure up to about 24 weeks. But in 2022, the state enacted a ban on abortions after 15 weeks, and last year, a ban after six weeks.

Floridians are awaiting a ruling from the state Supreme Court on the constitutionality of the 15-week ban. If, as expected, the court affirms it, the way would be cleared for the six-week ban to take effect.

The court’s ideological balance has shifted in recent years, from liberal to conservative. Five of the seven current justices were appointed by Gov. Ron DeSantis, a Republican, who signed the two abortion bans.

Even so, several of the justices dismissed arguments Wednesday by the ballot measure’s opponents, led by the office of the state’s Republican attorney general, Ashley Moody, that the language of the proposed amendment and its ballot summary were too broad, vague and misleading. Florida requires that ballot questions be clear and limited to a single subject.

The proposed amendment reads 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 health care provider.”

“That is breathtakingly broad,” said Mathew D. Staver, a lawyer for two groups that oppose the measure, the anti-abortion Liberty Counsel and Florida Voters Against Extremism. The voters’ group is preparing to campaign against the measure if it is approved, saying such a change would effectively ban all abortion restrictions.

“You’re saying, ‘This is a wolf,’ and a wolf it may be,” Justice John D. Couriel said. “But it seems like our job is to answer whether it’s a wolf in sheep’s clothing. That’s all we get to do.”

Proponents of the ballot measure see Florida as a major target in their campaign to expand abortion rights in the wake of the overturning of Roe v. Wade in 2022, by giving voters a direct say in the matter.

Similar efforts in Kansas, Kentucky and Michigan have resulted in voters maintaining or expanding abortion rights in those states. Efforts to put state constitutional amendments on the November ballot are underway in about a dozen other states, in addition to Florida. Opponents in several states have tried to fend off the ballot measures by taking issue with their language.

The Florida justices have until April 1 to rule on the constitutionality of the proposed measure’s language. If it passes muster and is placed on the ballot, it would require more than 60% support from voters to pass. The measure would retain a requirement, already in the Florida Constitution, that parents of a minor be notified if the minor seeks an abortion.

Floridians Protecting Freedom, an umbrella organization that includes Planned Parenthood and the American Civil Liberties Union, announced in January that it had collected enough petition signatures to get the measure on the ballot, pending Supreme Court review. The state has validated nearly 1 million signatures and designated the measure as Amendment 4.

In the hearing Wednesday, several justices raised other legal points. Muñiz asked whether the measure might interfere with the rights of a fetus, even though neither side had made a “fetal personhood” argument in the case. Justices Meredith Sasso and Renatha Francis asked whether “viability” was too vague a term, and whether legislators would have a say in defining it or it would be strictly up to health care providers.

Courtney Brewer, a lawyer for Floridians Protecting Freedom, said that voters understand what viability means in the context of abortion — it refers to the point in a fetus’ development when it is able to survive outside the womb — and that determining viability has traditionally been left to medical providers.

“This amendment follows the directive given by the U.S. Supreme Court in Dobbs that the people should decide how their state governs abortion,” Brewer told the court, referring to the 2022 decision that overturned Roe. “And in crafting the amendment and summary, the drafters followed the instructions given by this court.”

This article originally appeared in The New York Times. © 2024 The New York Times

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