February 21, 2024

The Florida Supreme Court heard arguments Wednesday about a proposed ballot initiative to enshrine abortion rights in the state constitution—and it wasn’t looking good for the amendment’s opponents.

Florida Attorney General Ashley Moody had asked the high court to strike down the amendment, despite overwhelming support for it. Floridians Protecting Freedom, the group that helped organize signature collection for the initiative, gathered nearly one million verified signatures, far more than the minimum required. And many of those signatories were Republican voters.

Nathan Forrester, a Florida senior deputy solicitor general, argued Wednesday, as Moody had in her initial request, that the amendment’s language was too ambiguous. The amendment states that “no law shall prohibit, penalize, delay, or restrict abortion before viability.” State attorneys claimed that the use of the word “viability” could have multiple meanings.

But Courtney Brewer, a Florida State University professor representing the amendment’s backers, disagreed.

“Voters understand what is before them,” Brewer said. “If a voter doesn’t like this amendment, they are perfectly capable of voting against it.”

More importantly, she noted, voting to amend the state constitution was Florida residents’ right, both as part of a democracy and as laid out by the Supreme Court when it overturned Roe v. Wade.

“This amendment follows the directive given by the U.S. Supreme Court in Dobbs, that the people should decide how their state may govern abortion,” Brewer said.

The Florida Supreme Court justices appeared inclined to agree with Brewer’s arguments. Justice John Couriel pointed out that the court’s job was not to determine whether the amendment was good or bad, but to decide if it was clearly written or “a wolf in sheep’s clothing.”

Chief Justice Carlos Muñiz called the measure “a wolf that comes as a wolf.”

“The people of Florida aren’t stupid—they can figure things out,” Muñiz said. “People can see for themselves whether it’s too broad or vague.”

The court has until April 1 to approve or reject the ballot measure. If the justices let that deadline pass, then the measure will proceed to the ballot by default.

The justices are also weighing Florida’s current abortion law, which bans the procedure after 15 weeks. If the court upholds the law, then an even more restrictive measure banning abortion at six weeks—before most people know they are pregnant—will go into effect. Florida Governor Ron DeSantis signed the hugely unpopular bill last year. In January, Florida Republicans introduced a bill essentially banning abortion altogether.

If the abortion amendment makes it onto the ballot, then it has a strong chance of winning. Florida requires 60 percent of voters to support amending the state constitution. A 2023 study by the Public Religion Research Institute found that 64 percent of Floridians believe abortion should be legal in all or most cases—more than enough to defeat the state’s minimum threshold.

Since Roe was overturned, ballot initiatives have become a key tool in protecting abortion access. Multiple Republican-led states have put the question of abortion on the ballot—and every single time, voters choose to increase protections.