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.
“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.
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.