I was thrilled when I learned that the Supreme Court of Florida decided to allow a referendum on abortion this fall. Many people, including me, feared that the Court would throw out the referendum on grounds that the term “viability” is vague, that the referendum should call for a certain number of weeks.

Shouldn’t the public have the right to judge its laws?

But our reader, self-named Democracy, says it’s too soon to celebrate. The Court ‘s decision. It turns out, on close reading, that the Court inserted a barely noticed escape hatch if the referendum passes.

DeSantis appointed five of the seven justices on the Supreme Court.

Democracy wrote:

The Florida Supreme Court didn’t just do a “two-step” on abortion, they did a three-step.

First, the conservative Republican Supremes ruled 6-1 that the state constitution’s privacy protection(s) did NOT apply to abortion. They cited the U.S. Supreme Court’s Dobbs v. Jackson (2022) decision that REJECTED Roe v. Wade’s finding that “the constitutional right to privacy was broad enough to protect an abortion choice made by a ‘woman and her responsible physician.’ “ And, in so doing, the conservative Republican Supremes REJECTED what a previous state Supreme Court had found in interpreting Florida’s 1980 voter-approved Privacy Clause that “few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision … whether to end her pregnancy.”

The conservative majority complained that when voters approved the Privacy Clause, they did not understand it to apply to abortion, an absolutely astounding claim.

As Justice Jorge Labarga wrote in dissent,

“I lament that what the majority has done today supplants Florida voters’ understanding — then and now — that the right of privacy includes the right to an abortion. The majority concludes that the public understanding of the right of privacy did not encompass the right to an abortion. However, the dominance of Roe in the public discourse makes it inconceivable that in 1980, Florida voters did not associate abortion with the right of privacy.” 

Second, the conservative Republican Supremes ruled 4-3 that a constitutional amendment guaranteeing abortion rights CAN be placed on the ballot in Florida in November. The per curiam ballot decision said this:

“We decline to adopt a standard that would effectively vest us with the power to bar an amendment from the ballot because of a supposed ambiguity in the text of the amendment.”

Republican governor Ron DeSantis and Republican Attorney General — who is a Trumper and a seditionist — were opposed to voters deciding the abortion issue. The Amendment to Limit Government Interference with Abortion will need 60 percent of the vote to be passed.

Third, the conservative Florida Supremes hedged their bets. In oral arguments and in writing, several of the justices raised the issue of fetal personhood, questioning how an amendment protecting the right to an abortion would square with the state constitution’s guarantee that all “‘natural persons’ have a right to life and liberty.” The Chief Justice wrote that an abortion protection amendment “would constitutionalize restrictions on the people’s authority to use law to protect an entire class of human beings from private harm.”

Thus, the conservative Republican majority wrote, yes, voters CAN get to decide if they want to pass The Amendment to Limit Government Interference with Abortion amendment, BUT it may well be in direct opposition to “personhood rights as applied to the unborn child.”

And guess who gets to decide THAT question?

As University of California-Davis law professor Mary Ziegler put it,

“They’re saying the constitution may still protect the fetus and unborn child, and that question is still alive.”