Putting Abortion Question to Florida Voters is Unlikely to End Court Fights

Abortion-rights supporters celebrated last week when the Florida Supreme Court said voters could decide this fall whether to approve a state constitutional amendment protecting and expanding abortion rights in Florida. But the court also laid out a road map for anti-abortion groups to challenge any expansion, by raising the prospect of “fetal personhood.”

In concurring and dissenting opinions that accompanied the ruling, four of the seven justices on the conservative court indicated that they may interpret the State Constitution to grant fetuses the same legal rights as people, foretelling the next likely court fight over abortion. The proposed state constitutional amendment would guarantee access to abortion “before viability,” or before about 24 weeks of pregnancy.

“If this does pass — but even if it doesn’t pass — I think that there is an open door to go to the Florida Supreme Court,” said Mathew D. Staver, a lawyer for two anti-abortion groups that oppose the ballot measure, the Liberty Counsel and Florida Voters Against Extremism.

Anti-abortion activists have promoted the fetal personhood legal strategy since the U.S. Supreme Court eliminated the federal right to abortion in 2022. What has been perhaps their biggest success came in February, when the Alabama Supreme Court held that a frozen embryo should be considered a person, opening a new front in the legal debate over abortion.

What was striking in Florida was that the argument was not raised by one of the lawyers opposing the abortion ballot measure, but rather by the court.

Chief Justice Carlos G. Muñiz asked during oral arguments in February — before the Alabama ruling — whether the proposed Florida amendment might interfere with the rights of the fetus.

Put on the spot by Chief Justice Muñiz, neither side took a firm position. But after the hearing, anti-abortion lawyers filed an additional brief that cited the Alabama case and urged the court to consider fetal rights in its deliberations.

When the court’s ruling came down on April 1, Chief Justice Muñiz sided with the 4-3 majority in allowing the proposed amendment to go to voters. But a footnote in the majority opinion called the question of fetal rights “unsettled.”

“Someone is certainly going to take him up on that,” said Mary Ziegler, an abortion law expert at the University of California, Davis, who previously taught at Florida State University in Tallahassee. “Someone is going to test the water.”

The three justices in the minority — Justices Renatha Francis, Jamie R. Grosshans and Meredith L. Sasso — also directly addressed fetal rights in separate dissents.

“The voter may think this amendment results in settling this issue once and for all,” Justice Grosshans wrote. “It does not.”

The court, she wrote, has yet to address whether the rights guaranteed by the Florida Constitution “apply to the unborn and, if so, what the scope of those rights could be.” She went on to call the amendment defective because it did not make clear to voters that the question was not yet settled.

Aadika Singh, a lawyer for the Public Rights Project, which filed a court brief in support of the ballot measure, said it was “troubling” that the justices had signaled they would be willing to take up a challenge to the amendment, even as they ruled that voters could decide whether to approve it.

“They went out of their way,” she said of the court, to say, “‘We are willing, in a future case, to undermine that democratic decision.’”

Still, she added: “The ballot measure decision is an important victory. It allows Floridians to weigh in directly on the issue, and that is a win for abortion rights and democracy.”

Supporters of abortion rights are trying to put measures on the ballot in about 10 states to secure access to the procedure. Former President Donald J. Trump, who had given mixed signals on his position, said in a video statement on Monday that abortion restrictions should be left up to the states: “It’s all about the will of the people,” he said.

In a separate ruling last week, the Florida justices affirmed a state abortion ban at 15 weeks of pregnancy — a decision that effectively allowed a more recently enacted 6-week ban to take effect by May 1.

The fine print of the court’s opinions underscored that getting the abortion measure on the ballot was not likely to end the battle, even if the amendment gets more than 60 percent of the vote in November, as is needed for it to pass.

There is precedent for a Florida constitutional amendment to be challenged before Election Day and overturned long afterward. The state Supreme Court ruled in 2000 that an amendment adopted nearly two years earlier, regarding the wording of the death penalty in the State Constitution, was unconstitutional because it had misled voters.

Mr. Staver said he was aware of that precedent and was considering options for challenging the abortion measure. “That’s an avenue that we are looking at,” he said.

The Florida Legislature could also try to thwart the amendment if it passes. After voters in Ohio protected abortion rights with a constitutional amendment last year, some Republican lawmakers tried to strip state courts of the power to enforce the amendment.

In Florida, Gov. Ron DeSantis and fellow Republicans in control of the State Legislature could seek to define key terms in the constitutional amendment, including “viability,” said Barbara J. Pariente, a former chief justice on the Florida Supreme Court who retired in 2019.

“My feeling is that, in Florida, because of the governor we have and the Republican majority, that there will be every attempt to interfere with the intent of the amendment,” she said.

In 2018, Florida voters approved a constitutional amendment restoring voting rights for most felons. By 2020, much of the measure had been gutted by lawmakers and the courts.