Fl Supreme Court urged not to let ‘political questions’ sway it on abortion initiative

Supporters’ briefs argue voters retain the right to overrule Legislature

By: - November 13, 2023 4:11 pm

Abortion rights activists rally in protest against six-week abortion bill at the old Florida Historic Capitol on March 29, 2023. Credit: Briana Michel

The sponsor of a proposed state constitutional amendment to guarantee the right to abortion has filed legal arguments with the Florida Supreme Court deriding objections from Attorney General Ashley Moody that the measure’s ballot language would mislead voters.

Floridians Protecting Freedom insists in a 65-page legal brief that the court is obliged by state law and legal precedent to clear their proposal for the 2024 ballot because it meets the requirement for addressing a single subject in non-misleading language.

Florida Supreme Court Chief Justice Carlos Muñiz participated in oral arguments over abortion rights in Florida on Sept. 8, 2023. Source: Screenshot/Florida Channel

“In doing so, the court does not consider the proposed amendment’s wisdom or merits — those are political questions for the voters. The court withholds a proposed amendment from the voters only when it finds the amendment is clearly and conclusively defective, i.e., when it violates the single-subject rule or its ballot title and summary affirmatively mislead voters. This amendment does neither. It is ready for a popular vote,” the sponsor’s brief reads.

The single-subject rule is designed to prevent sponsors from loading unpopular proposals among popular ones to force voters to accept the former if they want the latter, the brief notes.

Floridians Protecting Freedom is behind the proposed Amendment to Limit Government Interference with Abortion, initiated after the U.S. Supreme Court overturned Roe v. Wade last summer and sent the matter of legal abortion to the states.

The Florida Legislature responded by passing a 15-week abortion ban last year and a six-week ban this year that would take effect if the Florida Supreme Court upholds the 15-week ban; the justices have heard oral arguments and a ruling is pending.

As of Monday, Floridians Protecting Freedom had gathered 491,892 of the 891,523 petition signatures necessary to qualify for the ballot, but that’s enough to trigger Florida Supreme Court review of the ballot summary and an estimate by state economists of its fiscal implications.

The brief and a number of “amicus” briefs were posted on the case docket on Monday morning.

The language

The text of the amendment says: “Limiting government interference with abortion.— Except as provided in Article X, Section 22, 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.”

(The cited provision allows the Legislature to require parental notification before a minor undergoes an abortion with the option of allowing the child to ask a judge for permission instead.)

The summary reads: “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.”

Florida Attorney General Ashley Moody. Credit: Office of Attorney General

In her own brief, filed on Oct. 31, Moody alleges intentional ambiguity involving the proposal’s definition of “viability” as ability by a baby to live outside the womb with what she calls “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.”

She quibbles that the measure’s definitions of “patient’s health” and “healthcare provider” are too vague and that the language falsely neglects that the federal government might one day pass an anti-abortion law that could implicate abortion in Florida.

Anti-abortion organizations including the National Center for Life and Liberty, Susan B. Anthony Pro-Life America, Florida Conference of Catholic Bishops, and Florida Voters Against Extremism offered briefs supporting Moody’s position.

‘Fundamentally political arguments’

Floridians Protecting Freedom’s brief notes that Moody’s team asked the court to soften its precedents that ballot language must be clearly defective but doesn’t take the idea seriously.

“Knowing they cannot prevail under current law, the attorney general and [Susan B. Anthony] also suggest this court alter its standards of review or change its single-subject test to prevent the ballot initiative from reaching voters. In parallel, the opponents catastrophize about the amendment’s application. These are fundamentally political arguments about the proposed amendment’s merits that have no bearing on the task before the court,” the sponsor’s brief says.

That brief waves aside the objection that the ballot language doesn’t discuss possible federal laws.

“Unable to seriously dispute that the ballot summary and title fairly disclose the amendment’s chief purpose, opponents attempt to transform the ‘chief purpose’ requirement into an obligation to disclose all theoretical legal effects of a proposed amendment,” the sponsor argues.

But state law and Florida Supreme Court precedent reject such an expansive view of the court’s obligations when reviewing ballot language, it continues.

“In fact, the court has made clear, repeatedly, that the chief-purpose requirement does not require ‘an exhaustive explanation of the interpretation and future possible effects of the amendment,’” it says.

As for the alleged ambiguous language, “The question is not whether the proposed constitutional language itself is free of any ambiguity, but whether the ballot title and summary affirmatively mislead voters as to the new constitutional language voters are asked to adopt,” the sponsor’s brief argues.

“Even if some ambiguity existed as to the amendment’s future applications, this court has held that it will not strike a proposal from the ballot based upon an argument concerning ‘the ambiguous legal effect of the amendment’s text rather than the clarity of the ballot title and summary.’”


Regarding disputed definitions, the sponsor’s brief notes that “healthcare providers” is a commonly understood term for the professionals who have always judged when a particular pregnancy is viable, in contrast to “the Legislature or judiciary.”

“The proposed amendment would not alter that longstanding framework, so the attorney general’s argument that it would work a ‘substantial’ ‘usurpation of government functions’ is wrong,” it says.

The brief cites dictionary definitions of “viability” and records of usage extending as far as an 1843 legal dictionary that defined the word as “an aptitude to live after birth; extra uterine life.”

As for opponents’ arguments that the amendment would forbid any restriction on abortion under any circumstances, the sponsor argues that’s simply false.

“The proposed amendment limits laws that ‘prohibit, penalize, delay, or restrict,’ but neither the amendment, nor the ballot summary, purport to ban all ‘government interference,” the brief reads.

“It is difficult to see how opponents can even read the amendment to foreclose government interference with — or indeed a complete ban on — abortions that are post-viability and not necessary to protect the patient’s health, as determined by the patient’s healthcare provider. The opponents’ fantastical contentions that the proposed amendment annuls the state’s police power or otherwise completely removes abortion from the subject of regulation are simply false,” it says.

Republicans’ brief

An array of former Republican elected officials, including former Lt. Gov. Jennifer Carroll, state Sens. Paula Dockery and Dennis L. Jones, former state Reps. Raymond Pilon and Juan-Carlos Planas, and county and municipal former officials, filed a brief, too.

“Although we have a range of opinions regarding the initiative, we file this brief in support of it because we respect the authority of the people to engage directly in our democracy and believe the initiative petition to meet minimal requirements,” their brief notes.

The brief defends the court’s existing standard that it must OK ballot language unless “clearly and conclusively defective” — again, which Moody asked the justices to abandon.

“The AG’s proposal would interfere with the right of self-determination for all Florida citizens and their sovereignty. And the AG’s view does not comport with the expansive direct democracy that states like Florida allow by resolving technical and procedural doubts in favor of the ballot sponsors,” the former Republican elected officials say in their brief.

A group of law professors and legal scholars, chiefly from the Florida A&M University College of Law, traced the history of the citizens’ initiative as a way for voters to impose their will on a state government that might not otherwise respect their policy preferences.

“In the wake of the Dobbs ruling repealing federal constitutional protection for reproductive rights, voters turned to state constitutions and their direct democracy provisions to reaffirm and restore those rights,” the brief argues.

“In every state where abortion access and reproductive freedom has been put on the ballot, voters overwhelmingly approved those measures. This reality is what the attorney general’s petition seeks to prevent. The court should reject this attempt to undermine the rights of the people and to subvert both the intent and express language of this vital constitutional process. The [Moody] petition should be rejected and the Limiting Government Interference with Abortion amendment placed on the ballot,” it continues.

Doctors contribute

The American College of Obstetricians and Gynecologists filed a brief rejecting Moody’s assertion that the organization has acknowledged that “viability” can be an ambiguous term.

“In fact, the ballot summary contains clear and unambiguous language; the word viability is not a vague or ambiguous term. Both the U.S. Supreme Court and the state of Florida have used the term in connection with abortion for more than five decades in a way that is widely understood by clinicians, courts, and the public to mean the point in a pregnancy where a fetus may be expected to survive outside of the uterus,” the brief reads.

The brief takes aim at limiting abortion access by gestational age, as Florida law does.

“Gestational age bans are arbitrary and not supported by science or medicine, and gestational age is only one factor health care professionals consider when estimating viability. Bans on abortion care often overlook unique patient needs, medical evidence, individual facts in a given case, and the inherent uncertainty of outcomes in favor of defining viability solely by gestational ages. As a result, [we] strongly oppose[] policymakers defining viability or using viability as a basis to limit access to evidence-based care,” the brief adds.

Fifty-three medical doctors filed their own brief, also discounting the opponents’ vagueness argument.

“The attorney general’s brief argues that viability is vague because voters might not be able to determine precisely when viability occurs,” it says. “However, voters are not being asked to determine when viability occurs in a given pregnancy — instead, they are being asked whether they support leaving that determination to healthcare providers.”


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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.