Marta Lavandier/AP Photo
Florida Attorney General Ashley Moody speaks at a news conference, January 26, 2023, in Miami. This month, a petition initiative that would enshrine abortion rights in the Florida constitution reached the necessary number of verified signatures to qualify for the 2024 ballot.
In the Dobbs decision, the Supreme Court explicitly ruled that “the authority to regulate abortion is returned to the people and their elected representatives.” Despite that conclusion, wielding that authority hasn’t always proven to be a smooth path for the people to have a say on the issue. In Florida, public officials, from Republican state lawmakers to the attorney general, are working hard to make sure that they don’t.
Florida is one of roughly a dozen states poised to put a constitutional amendment before voters to guarantee the right to abortion. Abortion rights supporters have collected enough verified signatures to move the question to the November ballot. Pulling out all the stops to block the measure is the state’s Republican attorney general, Ashley Moody. She has asked the Florida Supreme Court to block the proposed amendment, claiming that the summary that would appear on the ballot intends to “trick” and “hoodwink” voters through “misleading” language into supporting something they did not understand.
Attorneys general in Ohio and Missouri tried the same English-language obfuscation tactics. What is happening in Florida is another attempt to derail direct democracy—voters’ right to decide on how states handle certain policy questions. The Florida details are different, but the goal is the same. Confronted with angry citizens grappling with the post-Roe chaos, Republican trifecta states are merely doubling down on enacting as many obstacles as they can to derail ballot measures before anyone gets to vote on them.
Arguing that abortion ballot measure organizers have put forward language that doesn’t really mean what it says is a familiar tactic used by abortion opponents—and in Florida, the attorney general is literally pointing at a comma in a feverish effort to keep the amendment off the ballot.
The citizen-referred initiative, “Amendment to Limit Government Interference with Abortion,” would allow abortion “before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.” In her initial brief to the court, Moody contended that the language is disingenuous: “health” could mean mental as well as physical health, and including mental health could lead to more abortions.
Similarly, a “healthcare provider” could extend beyond doctors; the term could apply to “nearly any staff involved in some way in caring for the patient at a medical facility or abortion clinic.” “Viability” gets a perplexing deconstruction, contrasting Roe and Planned Parenthood v. Casey (which affirmed Roe) usage with “‘viability’ in the more traditional clinical sense,” a phrasing that appears to have little to do with a medical definition:
The problem is that some voters will read “viability” as Roe and Casey used the term—as referring to a baby “potentially able to live outside the mother’s womb.” 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.
There is also extensive analysis of one particular comma in the first sentence of the amendment summary, which is coupled with the claim that its usage hides clues about the summary’s real intentions. In short, the case before the Florida Supreme Court is a sterling example of why medical decisions should be left to patients and professionals in the fields of obstetrics and gynecology rather than legal beagles attempting to make medical decisions based on comma usage.
Floridians Protecting Freedom, a statewide alliance of groups and individuals leading the amendment campaign, began working on the measure’s language long before Dobbs. The attorney general’s legal brief “reads more like a messaging document,” says Lauren Brenzel, the alliance’s campaign director. “That shows really the strength of our language when you’re grasping at straws. We know that viability is well defined in the abortion context. It is the same understanding that Florida utilized pre the passage of the 15-week ban.”
(The legislature has passed a six-week ban that is contingent on the outcome of a Supreme Court decision in another case, regarding the 15-week ban that is currently in force.)
The state supreme justices have the last word. They must decide whether the summary and title are limited to a single subject and are “clear and unambiguous”—that is, whether voters will understand the measure as written. There are no rewrites and resubmissions. If they rule that the language meets these criteria, the title and summary go on the ballot. All seven judges are Republicans, with five appointed by Gov. Ron DeSantis and two by former GOP Gov. Charlie Crist.
Florida voters have used direct-democracy tools to pass what Brenzel calls “life-impacting policies,” such as a $15 minimum wage and medical marijuana. Yet a successful outcome to the state supreme court abortion ballot language case does not necessarily mean that controversies end. The passage of Amendment 4 in 2018, which gave certain returning citizens the right to vote, convinced the Republican legislature to set up additional obstacles, such as forcing people to pay off enormous fees and fines before they could vote. After DeSantis set up an election crimes unit in 2022, some people, who were unaware that they owed money or were not eligible to vote, were arrested for casting a ballot. Brenzel calls Amendment 4 “unique” and “a lesson learned from the past.”
“We know that ‘terms of sentencing’ was never defined in Amendment 4 in a way that didn’t include fines and fees,” she says.
The amendment campaign has collected nearly a million and a half signatures, far in excess of the required threshold of 891,523 verified signatures (936,385 have been verified so far). Republicans have provided healthy support for the abortion amendment just as similar campaigns in Ohio, Kansas, and Kentucky have.
If the amendment clears all the procedural hurdles, it would have to be approved by a supermajority of 60 percent of voters in November. In a brief filed in support of the amendment, a group of former Republican elected officials spoke up for “the people’s power.” “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,” they wrote. “The people should decide as Dobbs intended.”
The Florida Supreme Court hears oral arguments in the abortion ballot summary case on February 7.
