FL Supreme Court’s ruling on abortion-rights referendum imminent, but late argument arises

With the Florida Supreme Court poised to rule any day now on whether the abortion-rights referendum can go on the November ballot, anti-abortion groups are arguing that the state Constitution already protects a right to life for embryos and fetuses.

Liberty Counsel and Susan B. Anthony Pro-Life America picked up on a question that Chief Justice Carlos Muñiz asked during oral arguments over the initiative’s ballot summary on Feb. 7 — does constitutional language protecting the rights of all “natural persons” extend to “an unborn child at any stage of pregnancy”?

Susan B. Anthony submitted a lengthy analysis on March 11 arguing that the Constitution says just that. But there’s no record in the case docket suggesting the court is considering that argument, which neither the initiative’s sponsors nor the state addressed in legal briefs or oral arguments.

The court faces a Monday deadline for deciding whether the proposed Amendment to Limit Government Interference with Abortion can go before the voters. The justices have to determine whether the ballot summary, as the Constitution requires, “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.

The court faces the same deadline for deciding on ballot language for another proposed constitutional amendment to allow adult use of cannabis.

The justices typically release opinions at 11 a.m. on Thursdays, but nothing requires them to issue the abortion or weed rulings at that time. But Monday is a hard deadline, imposed to give election officials time to prepare ballots. Holy Week — one of the Christian church’s most important observances — concludes Sunday with Easter.

We’re also waiting for a ruling in a test of Florida’s 15-week abortion ban, passed in 2022. The court is considering overturning its 1989 precedent finding that the Constitution’s privacy clause protects access to the procedure. If the court does that, a six-week ban passed in 2023 would also become law. The justices heard oral arguments in that case in September but has no deadline for issuing a decision.

‘Beyond the scope’

Notably, Attorney General Ashley Moody, a Republican who argued against allowing both initiatives on the ballot, offered to file a post-argument brief in the abortion case but the court did not take her up on it. The state’s lawyers took no position when Muñiz asked the question in court — although key members of the court seemed skeptical of the state’s arguments against submitting the measure to the voters.

Amendment sponsor Floridians Protecting Freedom dismissed the value of this issue.

“It would be unprecedented for the court to block an amendment from the ballot for not predicting a position on a legal theory that no court in Florida has ever taken. Neither the attorney general, nor opponents, raised this issue during briefing, as it is beyond the scope of the court’s review,” policy counsel Michelle Morton said in an email to the Phoenix.

The question Muñiz raised involves two provisions in the Florida Constitution. The first is headed “Basic Rights”:

“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.”

The second is “Due Process”:

“No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.”

Submissions

Liberty Counsel and Florida Voters against Extremism have filed post-argument documents addressing the issue. One cites criminal statutes penalizing the killing of an unborn child through an injury to the mother and laws allowing for appointment of a guardian for an unborn child under some circumstances. Another points to the Alabama Supreme Court’s recent ruling that embryos preserved cryogenically for in vitro fertilization are the same as a living person.

The Susan B. Anthony submission points to an analysis by David Thompson, managing partner in the influential Washington, D.C., boutique law firm of Cooper & Kirk, who traces the history of ideas about what constitutes a “person” dating to Sir William Blackstone’s “Commentaries on the Laws of England,” published in the mid-Eighteenth Century, through the 1968 revisions to the Florida Constitution.

“Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb,” Blackstone wrote at the time.

Thompson goes into considerable detail about revisions to the Florida Constitution before and following the Civil War, including the transition from discussions of the rights of “men” to those of “persons” to “natural persons.”

“Natural persons” refers to human beings, as opposed to entities like corporations that the law also treats as persons but not necessarily with all the rights accorded to humans.

That reference to the ability to “stir in the womb” was important, Thompson writes — that, called “quickening,” for generations had been taken as the beginning of life.

Rise of abortion restrictions

However, “By the early-Nineteenth Century, the country was beginning to question whether the common law was adequately protecting preborn persons, particularly with respect to the quickening standard,” Thompson writes.

“That standard — that an abortionist could be charged with a crime only if fetal movement was detectable — had arisen not as a statement about when personhood begins  … but rather as a prudential rule of evidence in light of the difficulty of proving, prior to quickening, that the woman was pregnant, that the fetus was alive when the abortion was committed, and that the abortion caused his or her death.”

The advancement of medicine, including increasingly sophisticated microscopes, changed things, Thompson continues. By 1867, Ohio had passed an anti-abortion law on the theory that “the foetus in utero is alive from the very moment of conception,” he writes. Florida criminalized abortion the following year, he adds, and continued to legislate regarding the personhood of embryos and fetuses through adoption of the 1968 Constitution — implying its framers would have viewed them as “natural persons” and “persons” under the two constitutional provisions.

“Of course, this conclusion means that the initiative petition cannot survive the Florida Supreme Court’s review. For it would be clearly invalid under Florida law because it fails to identify substantially affected provisions of the Constitution,” Susan B. Anthony’s attorneys wrote.

“More than that, though, any attempt to create a constitutional right to abortion would violate the single-subject rule by attempting to revoke multiple fundamental rights guaranteed by different sections of the Constitution. A long line of Florida Supreme Court precedent holds that such cataclysmic change may not be accomplished by initiative petition,” they add.

Thompson doesn’t address how the Florida Constitution could have protected abortion even beyond the scope of Roe v. Wade between 1989 and now.