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Abortion rights backers take heart from Ohio but Supremes likely won’t let Florida voters decide for themselves in 2024

abortion
abortion
Ohio supporters of a measure to enshrine the right to an abortion in the state’s constitution celebrate its passage Tuesday night. Photo: ABC News

By Noreen Marcus, FloridaBulldog.org

Advocates of a reproductive freedom proposal for the 2024 Florida ballot celebrated this week when Ohio became the seventh state to join an abortion rights backlash after the U.S. Supreme Court reversed Roe v. Wade.

On Tuesday, Ohio voters affirmed, by a wide margin, a ballot measure that adds the right to abortion to the state constitution. It guarantees to every person the right “to one’s own reproductive medical treatment,’’ including abortion, and bars the state from ‘’burdening, penalizing or prohibiting’’ these personal choices.

But this is Florida, where the hard-right Supreme Court is expected to authorize a near-total, six-week abortion ban that the Republican-dominated Legislature passed and presidential hopeful Gov. Ron DeSantis signed.

DeSantis has packed the current court with conservatives who have strong ties to the Christian anti-abortion movement. 

Justice Charles Canady, who was already on the court when DeSantis took office, coined the controversial term “partial birth abortion” as a U.S. congressman. His wife, state Rep. Jennifer Canady, R-Lakeland, sponsored the six-week abortion ban.

When Planned Parenthood’s challenge to a 15-week ban was argued Sept. 8, Chief Justice Carlos Muniz called fetuses “human beings” and sounded incredulous at the very idea that the court would deny them protection.

Muniz’s court is the gatekeeper for all ballot measures. And based on politics and recent history, the gate for this one may be impenetrable, pro-choice advocates acknowledge.

Florida Chief Justice Carlos Muniz. Photo: WUSF

“That would be such a tragedy and such an abuse of power,” said Cecile Scoon, president of the League of Women Voters of Florida. “This is the voice of the people, these are the desires of the citizens of the state of Florida, and if you believe in democracy, let the people have a voice.”

AG MOODY WEIGHS IN

The League and other proponents have until Feb. 1 to gather and certify the nearly 900,000 signatures needed to place the reproductive rights measure on the November 2024 ballot. As of Oct. 6, 402,082 signatures had been validated, according to Ballotpedia.

Now that nearly half of the required signatures are in hand, the Supreme Court is running the ballot language through a two-part test: Does it cover a single subject? Is it clear enough for voters to understand?

Here are the title and summary that would appear on the ballot as a proposed addition to the Florida Constitution:

“Limiting government interference with abortion.— Except as provided in Article X, Section 22 [parental notice of a minor’s abortion], 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.”

The state attorney general must formally ask the Florida Supreme Court to determine a proposal’s constitutionality and issue an opinion. In this case, Florida Attorney General Ashley Moody shared a strong opinion of her own.

moody
Florida Attorney General Ashley Moody

In a Nov. 1 brief, she asked the court to reject the ballot proposal, which she slammed as an effort to “hoodwink” voters into accepting something they wouldn’t want if they knew exactly what they would get.

The ballot summary is designed “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’s brief states.

WHAT DOES ‘VIABILITY’ MEAN?

Florida Solicitor General Henry Whitaker elaborated during the Sept. 8 oral argument. He associated infanticide, euthanasia and spousal abuse with a broad interpretation of the state privacy law that’s been invoked to protect reproductive rights.

“Those are all involved, personal decisions that I suppose the government could be said to be interfering with, in some sense, when the Legislature takes action to remedy choices that harm others,” Whitaker said.

The state’s brief argues the word “viability” is open to so many interpretations that it’s fatally unclear. Under Roe v. Wade, fetal viability was generally understood to begin at 23 or 24 weeks of pregnancy, after abnormalities can be identified. But some voters see it differently.

“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,” according to the state’s brief. And that kind of viability exists much earlier than in the timeline established by Roe.

Scoon, a Panama City civil rights lawyer, said the average citizen knows “viability” is what a medical professional determines it to be in a particular case.

“We make legal decisions based on medical authority all the time, like when Medicare decides what treatments to cover,” she said. “The government has many times relied on the decisions of the medical profession to dictate policy. What’s different here?”

A national anti-abortion group that filed a brief opposing the Florida ballot initiative attributed the Ohio vote to campaign expenditures and misinformation.

“In Ohio, pro-abortion forces spent a staggering $66.7 million, outspending pro-life forces by a 2:1 margin to fuel a campaign centered on lies and deception to muscle through a constitutional amendment designed to allow unlimited, unregulated abortion,’’ Marjorie Dannenfeiser, president of Susan B. Anthony Pro-Life America, said in a statement released Wednesday.

The Florida Supreme Court has not yet scheduled oral arguments in the case.

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Latest comments

  • Letthe people vote…….. When my party gets beaten at the next election and sits and scratches their collective bald heads wondering what they did wrong not realizing or even caring that they died upon the cross of abortion. Abortion and guns are the only relevant issue the left has, and sorry to say they might be more than enough for them to win……… let majority rule by a ballot and kill both issues thus forcing the left to run on the real issues of open borders and the economy.

  • Well over a year later, the FL Supreme Court has yet to rule on the constitutionality of the 15-wk ban, which under current law is clearly unconstitutional and should have resulted in a quick ruling enjoining the law under the Florida Constitution’s broad right to privacy. But the Constitution doesn’t dovetail with Republican Party goals, so Republicans want the court to rewrite the FL Constitution itself (AG Moody wasn’t shy about putting it out there in court filings).

    The court’s conundrum is that the Constitution itself spells out that only through a referendum approved by voters can the Constitution be changed. The Supreme Court can’t override the will of the voters. But the pressure is on to do just that because Republicans have previously tried and failed to get a referendum passed excluding abortion from the right to privacy. Voters just don’t agree, leaving their only hope to insist that the court cut voters out of the decision.

    The FL Supreme Court so far has avoided their dilemma by refusing to rule on the 15-wk ban case, which conveniently allowed the unconstitutional ban to go into effect.
    It is thanks to the court’s refusal to protect Floridians’ freedom that triggered the current proposed constitutional amendment. Clearly, the freedom to make private decisions about abortion in private must be explicitly spelled out to be protected.

    A more recent law, a 6-wk ban, passed and signed by the governor, was written very strangely – it only goes into effect if/when the 15-wk ban is approved by the court.

    Fear of voter backlash is the reason for both – placate the party faithful and hope not antagonize the majority of FL voters. As long as the court sits on the 15-wk ban, statewide and national candidates such as DeSantis hope they can walk that fine line.
    The court appears to be afraid of ruling, yet Republicans control every branch of state government – the only group to be afraid of is VOTERS. (FL supreme Court justices are also elected, btw.)

    We need to continue standing up and showing up – through donations, volunteering, and signing the petition ourselves – to get the signatures necessary to put the proposed freedom to choose abortion amendment on the 2024 ballot. The more signatures we get, the more outspoken we are, the less likely Republicans will risk the major backlash that would ensue if they blatantly ignore the expressed will of the voters.

    WE are the pressure that will ensure that this gets on the ballot, where it is sure to win. The freedom to choose whether or not to have an abortion is among the most personal and private decisions one can make – and the FL Supreme Court literally said this in a prior case, back when the rule of law mattered. It is a nonpartisan issue and not one that will go away.

    We most certainly can win this, but only with all supporters pitching in, whether by printing out a petition, signing it and mailing it in, getting friends involved, volunteering, and/or donating. Money is running low and many more petitions are needed before the deadline. As the 6-wk ban shows, the legislature will not stop imtil a total ban is in effect. This is the last time we will have the chance to stop that erosion of our freedoms.
    https://floridiansprotectingfreedom.com/

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