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.”
Good morning, Diane. First paragraph, “Ciurt” instead of “Court.”
As always, thanks for your work.
Thanks, Mark.
I guess it is true that a law can be unconstitutional, whether it’s the product of a referendum or a legislature. So there is that risk.
Still, if the people of Florida approve this measure with 60% support, and it is invalidated by the Florida Supreme Court, there will be a political outrage of high proportions. As well there should be. And that outrage can be productive.
We are accustomed to political outrage in Florida as most of the new laws are often misleading and restrict rights. Florida citizens cannot count on the fact that their vote will be respected or implemented as DeSantis and the state legislature do what they can to undermine democracy at every opportunity.
Retired teacher,
Good thing for Florida that it has good weather most of the time. Otherwise most people would flee the autocracy.
Florida also makes it nearly impossible to vote for former felons who have served their time.
https://www.propublica.org/article/in-florida-the-gutting-of-a-landmark-law-leaves-few-felons-likely-to-vote
“Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 934,500 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.”
https://www.sentencingproject.org/reports/locked-out-2022-estimates-of-people-denied-voting-rights/
“Voters’ mail-in ballot requests cancelled as Florida passes new voting restrictions”
“This article is more than 1 year old”
“Law championed by Ron DeSantis also includes ID requirements and ballot box limits, making it harder to vote by mail”
https://www.theguardian.com/us-news/2023/feb/03/florida-voting-restrictions-mail-in-ballots-cancelled-ron-desantis
I also just found this:
Almost 1 million Florida voters declared inactive after law purging voter lists — Posted January 3, 2024
https://www.wmnf.org/almost-1-million-florida-voters-declared-inactive-after-law-purging-voter-lists/
More vote suppression.
I noted this about the Florida Supreme Court’s shenanigans, whereby it thumbed its collective conservative nose at Florida voters:
“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.”
The Florida Supremes are doing what conservative Republicans elsewhere are doing and have done, which is to claim — without scientific or medical evidence or consensus — that human life – a person – is created wholly at conception. This is a purely religious belief that has absolutely no constitutional basis.
As the decision in Roe v. Wade (1973) decision put it,
“The Constitution does not define ‘person’ in so many words. Section 1 of the Fourteenth Amendment contains three references to ‘person.’ The first, in defining ‘citizens,’ speaks of ‘persons born or naturalized in the United States’” The word also appears both in the Due Process Clause and in the Equal Protection Clause. ‘Person’ is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, in the Emolument Clause, in the provision outlining qualifications for the office of President, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates that it has any possible pre-natal application.”
The Supreme Court said this about the Texas anti-abortion law which codified human life as beginning at conception:
“Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
But, conservative Republicans — acting on behalf of evangelical “Christians”, who make up a powerful Republican voting bloc — have not merely “speculated” as to when human life begins, they have legislated their narrow religious dogma and forced it on the public.
And, in Florida, the Supremes have basically said that no matter what voters do, THEY – their holinesses – will impose their will.
I don’t follow the Florida courts so this is mainly a gut thing but I would be very surprised to see it hold a fetus is a “natural person.” I see that phrase was adopted in 1968, as a replacement for “men,” presumably to be explicitly inclusive of women (and maybe children?).
Can you explain more about which justice(s) raised this question at oral argument, what opinion the question was referenced in, and how it was referenced?
FLERP, the GOP has proposed Congressional legislation declaring fetal personhood.
Now that doesn’t surprise me.
In the oral arguments over the Florida abortion amendment to the state constitution, the chief justice of the Florida Supremes – Carlos G. Muñiz – asked specifically about fetal rights. As Bloomberg reported,
“Florida Supreme Court Chief Justice Carlos G. Muñiz asked during Feb. 7 oral arguments on an amendment that would protect abortion in the state whether the Florida Constitution’s guarantee that all ‘natural persons’ be ‘equal before the law’ can apply to fetuses. Muñiz questioned whether justices must first decide this before determining whether the proposed amendment protecting abortion until fetal viability was misleading.”
Meredith L. Sasso, a DeSantis appointee, raised the issue of fetal rights in voting NOT to allow the amendment on the ballot. Renatha Francis, another DeSantis appointee, did the same.
Jamie R. Grosshans, ALSO appointed by DeSantis, wrote the opinion finding that in Florida privacy does NOT apply to abortion, also said this when voting AGAINST the abortion amendment’s placement on the ballot:
“The voter may think this amendment results in settling this issue once and for all. It does not.”
The pugs have a problem with abortion here in Flor-uh-duh. On the one hand, Flor-uh-duh is a very backward, fundy Christian state. On the other hand, it has the second highest abortion rate in the country because there are a lot of uneducated people here, including a lot of feral young people, and among these folks, there are lots of abortions. So, there are a lot of fundy pugs in Flor-uh-duh who have thrown their ideas about abortion out the window when little Bubbette got pregnant and, on the whole, Floridians support the right of women to control their own bodies. Passing extremely restrictive abortion laws can turn this state blue, and pug leaders know this. So, a conundrum for them.
Imagine the can of worms that would be opened if Florida recognized fetuses as persons with equal protection rights.
Exactly