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Florida Supreme Court Appears Opposed to Ballot Measure for Abortions Up to Birth

The justices fired questions at both sides of the argument and homed in on the "broad" and "sweeping" language of the amendment and whether the voter would understand the amendment's effects.

Florida Supreme Court Appears Opposed to Ballot Measure for Abortions Up to Birth

The justices on the Florid Supreme Court today held a hearing about multiple concerns regarding a proposed amendment that would make killing babies in abortions up to birth a right under the state constitution.

Florida Attorney General Ashley Moody is asking the state Supreme Court to reject the ballot measure. Leading pro-life groups have joined her in that reuqest.

Moody told the state’s highest court that it should not allow the measure on the 2024 ballot because the language f the proposal is misleading. She says the summary language misinforms voters by making it appear abortions would be limited even though the proposal would endorse unlimited abortions throughout pregnancy.

Moody said the ballot summary is part of an “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.”

The abortion proposal’s ballot summary says, 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.”

During today’s hearing, Liberty Counsel Founder and Chairman Mat Staver and Florida Senior Deputy Solicitor for the Attorney General Nathan Forrester argued before the court’s seven justices asking them to reject the amendment because its language violates voter requirements by being “broad, misleading, and deceptive.” In addition, the broad and undefined amendment language also violates the single subject rule.

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During the near hour-long session, Staver and Forrester made several key points on why the proposed amendment should be rejected. Staver stated it violates the Florida Constitution’s single-subject requirement and would “substantially alter the government.” He stressed that the “No law shall restrict” language would completely deregulate abortion and disempower the three branches of government from any discretionary power to protect Florida citizens regarding abortion. Currently, the legislative branch is authorized to “prohibit” abortion through legislation; the executive branch is authorized to “penalize” citizens who violate abortion laws; and the judicial branch is authorized to “delay” or “restrict” any illegal or unconstitutional conduct. Lumping functional alterations to each branch of government in one amendment also violates the single-subject requirement.

“In this case, the breadth of those four words, ‘prohibit, penalize, delay, and restrict’ with regards to abortion disables all three forms of government…and it is a total abolition of the functions of those branches of government,” he said.

In addition, the argument to strike down the amendment included the idea that it is misleading and deceptive due to not defining key terms for the voter such as “health,” “viability,” “necessary,” and “health care provider.” These vague and undefined terms could then authorize a wide range of professions with no medical training to determine if a baby is viable, and whether an abortion is “necessary” for the patient’s “health” at all stages of pregnancy up to birth.

Attorney Courtney Brewer, who argued on behalf of the amendment’s sponsor, Floridians Protecting Freedom, stated the language of the amendment is clear and the “voters are perfectly capable of understanding” what the terms mean and should be able to “exercise their voice” and vote on it in November.

The justices fired questions at both sides of the argument and homed in on the “broad” and “sweeping” language of the amendment and whether the voter would understand the amendment’s effects.

Both Justice Meredith Sasso and Justice Jamie Grosshans stated the amendment would “change the status quo” and could have “multiple interpretations” which could “surprise a lot of voters.”

Justice Sasso stated, “There’s two scenarios. Either the words are undefined, and it will be played out later down the line in which case the voters are not advised of them, or this has a very clear meaning and the voters are not advised of the fact that it is going to shift policymaking from the legislature to this expert class of doctors to determine when to end lives in Florida.”

Justice Renatha Francis then stated, “… the chief purpose that is not communicated by the amendment proposed is that we would be enshrining abortion without restriction for the entire nine months of pregnancy. That is not being communicated in the language as it is drafted now…and it has divided everyone according to their personal beliefs.”

Justice John Couriel stated that the amendment may even allow a tattoo artist to make decisions about abortion.

Staver replied, “On the face of it, [the amendment] says ‘No law shall restrict.’ Every law and regulation restrict something. Under this amendment, the legislature would not be able to remedy or regulate bad actors.”

While Chief Justice Carlos Muñiz stated the amendment is “self-evidently broad,” he questioned whether the Florida Constitution includes the unborn in its definition of “natural person” and if the Court needed to decide that to determine whether the amendment goes forward or not.

“[The amendment] kind of assumes that the Constitution as it exists right now is silent as to the rights of the unborn. And I don’t know if that assumption is correct…if you view it as the rights of the woman and the rights potentially of the unborn that kind of changes the equation…,” stated Justice Muñiz.

The Florida Supreme Court is expected to render a decision by April 1. If the Court rejects the amendment, it will not appear on Florida’s 2024 ballot.

Staver concluded, “The amendment should not be approved because the language is deceptive and misleading. The amendment would authorize abortion for any reason at any time up to birth. The amendment’s sponsors want to fool the voters into changing the Florida Constitution to completely deregulate abortion, including doing away with health and safety standards, parental and informed consent. No law or regulation would stand if this amendment is passed. The amendment will literally throw women into back-alley abortion. The state will not be able to protect women.”

While the measure claims it only applies to viability, Moody points out how the undefined health eception essentially allows aboritons up to birth because any aboriton can be defined as necessary for a woman’s health even though abortion actually hurts women’s health. She also raised a series of objections to the wording, including contending that the word “viability” can have multiple meanings.

“Others will understand ‘viability’ in the more traditional clinical sense — as referring to a pregnancy that, but for an abortion or other misfortune, will result in the child’s live birth,” Moody’s brief said. “This ambiguity is no small interpretive quibble; ‘viability’ in the Roe/Casey sense occurs much later than in the traditional clinical sense. And polling shows that the stage of pregnancy at which abortion becomes illegal is crucial to whether voters approve of particular restrictions on abortion.”

“The latter concept of health (mental health), while by no means trivial, is also susceptible to expansive interpretation and could be used to justify a much larger number of abortions,” the brief said. “Here again, voters deserve to be made aware of the possibility that the health exception could be made essentially to swallow the rule.”

The proposed amendment is sponsored by Floridians Protecting Freedom, Inc., a political committee supported by the Florida Alliance of Planned Parenthood Affiliates, the American Civil Liberties Union, and other groups that support the termination of preborn humans through unrestricted abortion on demand. Even the name, Floridians Protecting Freedom, is deceptive when their objective is to “protect Floridians’ access to abortion as reproductive health care.”