Florida’s Highest Court Approves Inclusion of Abortion-Rights Amendment on Ballot

The Florida Supreme Court approved the language of an abortion-rights amendment slated to be on the ballot for the general election this fall, a victory for abortion-rights activists and Democrats, who hope it will provide an advantage to their candidates.

The court split in a 4-3 decision released on Monday that found the abortion-rights amendment is clear despite its broad-reaching implications for abortion access.

“That the proposed amendment’s principal goal and chief purpose is to limit government interference with abortion is plainly stated in terms that clearly and unambiguously reflect the text of the proposed amendment,” the majority opinion said. “And the broad sweep of this proposed amendment is obvious in the language of the summary. Denying this requires a flight from reality.”

The abortion-rights group Floridians Protecting Freedom began organizing efforts in May for an abortion-rights amendment following Gov. Ron DeSantis‘s (R-FL) signing of a measure establishing a six-week gestational age limit on abortions.

In a case also decided on Monday, the Florida Supreme Court upheld the constitutionality of the state’s six-week abortion ban, allowing it to take effect in 30 days.

“This is the largest single loss of care that we’ve seen since the overturning of Roe v. Wade, and we can’t fully understand what the impact will be,” said Lauren Brenzel, campaign director for FPF.

Brenzel expressed strong hope, though, that the abortion ban would be ruled unconstitutional should the amendment pass in November.

“We are thrilled that Floridians will have the opportunity to reclaim their bodily autonomy and to gain freedom from this government interference by voting yes on Amendment 4 this November,” Brenzel said. “This is a historic day in the fight for abortion access in Florida.”

Amendment criticism

State Attorney General Ashley Moody requested the Florida Supreme Court to review the proposed language in October, saying that the amendment’s use of the word “viability” may confuse voters because it can have two different meanings in a medical context.

The amendment says: “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.”

Very early in pregnancy, viability can mean when the risk of miscarriage drastically plummets, typically by 14 weeks gestation. Later in pregnancy, viability refers to when a fetus is likely to survive outside of the mother’s womb, which is typically between 20 and 24 weeks gestation.

Since Roe v. Wade was decided in 1973, viability in the political and legal context has generally meant fetal survival outside of the womb.

The text of the amendment also addresses that it does not invalidate the state’s existing constitutional provision regarding parental notification of medical procedures for minors. Anti-abortion advocates, however, highlight the difference between parental “notification” and “consent” in the context of a minor requesting an abortion.

Although critics of the amendment argued that the measure also violated the state’s single-issue requirement for all constitutional amendments, the court found that the amendment was sufficiently focused on a single issue.

“The singular goal of the proposed amendment here is to limit government interference with the termination of pregnancy. It involves one subject and addresses the related ability of State and local governments to ‘interfere[]with’ that subject,” the majority opinion said.

When the Supreme Court heard oral arguments in the state’s case against the amendment in January, the petition to get the issue on the ballot had received over 1.5 million citizen signatures, well exceeding the threshold.

Implications for 2024 general election

Florida is one of nine states that are actively weighing abortion-rights amendments, including Arizona and Missouri. Abortion-rights advocates in four other states — Iowa, Pennsylvania, Wisconsin, and Maine — are also trying to make a last-minute push to include abortion-rights amendments to their respective ballots in November.

Brenzel told reporters that there is strong Republican and Democratic support for the Florida amendment that “more closely mirrors” the standard of abortion access prior to the DeSantis administration and the overturning of Roe v. Wade in 2022.

Political science professor Charles Zelden of Nova Southeastern University told Miami news outlet WPLG that he anticipated the amendment would encourage greater participation from voters on both sides of the aisle. Zelden predicted, though, that the amendment would draw more participation from abortion-rights voters.

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“The one who benefits more is the pro side because those who are likely to vote for these initiatives are more likely to be casual voters,” Zelden said.

Nationally, abortion is the top priority for 1 in 8 voters heading into the 2024 election.