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FL Supreme Court justices skeptical about arguments for rejecting abortion amendment


FL Supreme Court justices skeptical about arguments for rejecting abortion amendment

Feb 07, 2024 | 12:24 pm ET
By Michael Moline Jackie Llanos Mitch Perry
FL Supreme Court justices skeptical about arguments for rejecting abortion amendment
The Florida Supreme Court on Feb. 7, 2024, hears oral arguments about whether to allow a proposed amendment guaranteeing abortion rights to appear on the November ballot. Source: Screenshot/Florida Channel

Key Florida Supreme Court conservatives didn’t seem to buy arguments from Republican Attorney General Ashley Moody’s office Wednesday that the proposed abortion-rights amendment should be denied a place on the November general election ballot.

During oral arguments in a crowded court in Tallahassee, Nathan Forrester, representing Moody’s office, argued the ballot summary is materially misleading on several points, including that in promising “no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health,” it doesn’t account for potential federal restrictions on the procedure.

That proved a tough sell with members of the court including Chief Justice Carlos Muñiz who, despite repeatedly referring to fetuses as the “unborn,” seemed convinced that the summary of the amendment that would appear on the ballot amply conveys what the amendment would do — theoretically the only issue before the court, not the merits of the measure.

FL Supreme Court justices skeptical about arguments for rejecting abortion amendment
Florida Chief Justice Carlos Muñiz hears arguments on Feb. 7, 2024, on the abortion-rights proposed constitutional amendment. Source: Screenshot/Florida Channel

“It’s pretty obvious that this is, you know, a pretty aggressive, comprehensive approach to dealing with this issue. You know, the voters can kind of argue about whether they want something more nuanced than that. It just doesn’t seem like this is trying to be deceptive. … There may be a problem with what it doesn’t disclose but, I mean, it’s pretty self-evidently broad,” Muñiz told Forrester late during the roughly 50-minute court session.

“The people of Florida aren’t stupid. I mean, they can figure this out,” Muñiz concluded.

That comment drew chuckles from the packed crowd in the courtroom.

The attorneys representing the state and the amendment sponsors made their case, and lawmakers and others watched the pivotal oral arguments. Democratic leaders Fentrice Driskell of the House and Lauren Book of the Senate were in attendance.

While Muñiz was the most outspoken, Justice Meredith Sasso, whom DeSantis appointed last May, led the questioning of the sponsor’s attorney, Courtney Brewer, and often interrupted her answers. Throughout the arguments, Justice Jorge Labarga remained mum. He has been on the bench since 2009 and is the last remaining moderate.

Outside, on the steps of the courthouse, more than 100 pro-abortion rights and anti-abortion advocates made their voices heard through signs, a rally, and press conferences.

The court’s ruling is due by April 1, spokesman Paul Flemming said.

Unworkable standard

A group called Floridians Protecting Freedom gathered 996,512 state-verified petition signatures behind placing the proposed Amendment to Limit Government Interference with Abortion before the voters. But first the Supreme Court has to determine whether the ballot summary, as established in the Constitution, “describes the chief purpose of the amendment or revision in clear and unambiguous language” and addresses a single subject.

It would appear on the ballot as Amendment 4.

Other than Moody’s office, abortion foes including the Susan B. Anthony Pro-Life America, the Florida Conference of Catholic Bishops, and Liberty Counsel supported her argument. Liberty Counsel is a conservative religious law office whose leader, Mat Staver, participated in the arguments.

FL Supreme Court justices skeptical about arguments for rejecting abortion amendment
Courtney Brewer represented advocates of an abortion-rights state constitutional amendment before the Florida Supreme Court on Feb. 7, 2024. Source: Screenshot/Florida Channel

Brewer, representing Floridians Protecting Freedom, argued that the group had abided by years of precedent in writing the initiative.

“This amendment deals with a single subject. It limits government interference with abortion. It just requires the government to comply with the Constitution, which governments know how to do,” Brewer said.

“This court has emphasized repeatedly how reluctant it is to remove an amendment from the people’s sanctified right of self-determination. It should not do so here, where the sponsor followed the framework established in other cases and the Constitution using the same understandable language in the summary and the amendment and addressing only one subject,” she continued.

“Instead, the people of Florida should be able to exercise their voice and vote on this amendment.”


Following the hearing, Brewer said in a written statement that she felt things had gone well.

“A plain reading of the amendment language shows that it pertains to only one subject and the summary is clear,” Brewer said. “This amendment clearly meets the criteria to be placed on the ballot before voters.”

“Opponents of Amendment 4’s ballot placement attempted to distort case law, misapply legal tests, and even asked the court to invent new standards in a desperate attempt to hide their lack of a legal argument behind hollow political rhetoric,” said Yes on 4 Campaign Director, Lauren Brenzel.

Other than Muñiz, Justice John Couriel, too, suggested the state was trying too hard to find ambiguity in the ballot summary. He suggested Moody and anti-abortion organizations sought to impose an unworkable standard on initiative sponsors.

“The only consequence if we were to adopt that kind of a reading of this is that it would dramatically change the substance of what could be proposed,” Couriel said.

He allowed that the proposal doesn’t explicitly explain the intersection between federal law and other provisions of the Florida Constitution but suggested it doesn’t have to.

“I mean, all these things that are supposedly, you know, up in the air about this, which I agree are going to have to be worked out over time if this were to become part of the Constitution — I mean, there’s no possible way that a summary could pick through all these different variables and possible implications and everything,” Couriel said.

“There is no clear answer to these questions. And the summary says what it says. I mean, people can see for themselves if it’s too broad or vague or whatever, indeterminate.”

Justice Charles Canady, too — who during his earlier career in the Florida Legislature and Congress was ardently anti-abortion — agreed with his colleagues. Additionally, the justice’s wife, Jennifer Canady is a House member who sponsored the state’s six-week abortion ban, which would take effect if the court upholds the 15-week ban the Legislature passed in 2022. The court heard that case in September but hasn’t ruled yet.

“It imposes an impossible burden on the people proposing an amendment,” Canady said of the state’s argument.

“And it seems like to me all these things need to be argued about in the political process. Because, otherwise, it is a restriction on the substance of what can be proposed. We’re not given the power in the Constitution to impose such a restriction,” Canady said.

‘Abortion without restriction’

Some of the toughest questions for Brewer came from the women justices. Justice Renatha Francis, for example, pressed her on an argument that “we would be enshrining in constitutional cement … abortion without restriction for the entire nine months of pregnancy and that is not being communicated to the voters in the way that the ballot summary and amendment is drafted.”

“And that is important because abortion is different, right, according to Dobbs, it’s a different issue. And it has divided everyone according to, you know, their personal beliefs. So, isn’t that the job of the proposed amendment, to make sure that they are communicating the chief purpose and the effect of what it is this proposed amendment would actually do?” Francis continued.

Dobbs v. Jackson Women’s Health Organization was the 2022 ruling in which the U.S. Supreme Court overturned Roe v. Wade.

“Your honor, I don’t know how an amendment could better communicate its chief purposes via a summary than by putting the language of the amendment in the summary,” Brewer replied.

“The voters will have that language in the ballot box with them. The whole purpose of the summary needing to be clear and unambiguous about the chief purpose is because often voters don’t have that language in the ballot box with them. But here they will,” Brewer said.

Far from a wolf in sheep’s clothing, “this is a wolf that comes as a wolf,” Muniz observed. “I mean, if people think that this is sweeping, the summary makes pretty obvious that it’s sweeping.”

Regarding a conflict with federal law, the federal Partial-Birth Abortion Ban Act of 1995 came up — which Canady sponsored while in Congress and which bars use of one late-term abortion procedure. Forrester argued that the words “no law shall” “has this universal connotation” for voters that might mislead them about the application of that federal law.

Justice Couriel at one point observed that the sponsors had “done an admirable job” in refuting that argument and that the partial birth abortion act “wouldn’t cover the same universe, the whole entire universe, of this field.”

“It couldn’t possibly be understood that the Florida Constitution would limit the congressional power to pass a law, could it?” Couriel asked.


Muñiz, who before joining the court pursued a mostly political legal career, did openly wonder how the amendment would align with the Florida Constitution’s Article I Section 2, which holds:

“All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property. No person shall be deprived of any right because of race, religion, national origin, or physical disability.”

Did the state think that would cover “an unborn child at any stage of pregnancy” — a provision that would imply broad restrictions on abortion access — Muñiz asked.

Forrester seemed unprepared for the question. “We just haven’t taken a position that, your honor,” he answered.

Muñiz conceded that a ballot summary can’t cover every angle, but that “if sort of the bare minimum is the people need to be on notice as to what does the Constitution does now and what are you proposing to change, can we evaluate that without taking a position on whether the current Constitution legally, not morally or politically or whatever, but legally speaks to this issue of any kind of rights for the unborn?” Muñiz said.

“We clearly haven’t analyzed this issue, but the Constitution says what it says; the words mean what they mean,” he continued, stressing that he hasn’t decided that question.

Forrester called that an “intriguing argument” but that the court doesn’t need to settle it to decide this case.

This story has been updated with additional details.