5 January 18-24, 2024 miaminewtimes.com | browardpalmbeach.com New Times | Contents | Letters | news | night+Day | CuLture | Cafe | MusiC | BALLOT BOXING What’s next for the ballot item to cement abortion rights into Florida’s constitution? BY PATRICK MCCASLIN M ore than 900,000 Flo- ridian voters have signed a petition to place Roe v. Wade-style abortion protections on the No- vember general election ballot — surpassing the number of signatures required to put the is- sue up for a vote. The proposed constitutional amendment would block the state from prohibiting abor- tion before “viability,” the point when a fetus can live outside of the womb. It also would bar restrictions on abortions necessary to protect a patient’s health. Crossing the signature threshold is a mile- stone for the item’s sponsor, Floridians Pro- tecting Freedom, but obstacles remain in securing a spot on the ballot, including a pending legal challenge by Florida Attorney General Ashley Moody. Oral arguments are set for February 7, when Floridians Protecting Freedom will present its case to the Florida Supreme Court, which has a seven-member panel of justices, five of whom are appointees of Republican Gov. Ron DeSantis. The group — whose mission is to “protect Floridians’ access to abortion as reproductive health care” — is a statewide alliance of sev- eral organizations, among which are the American Civil Liberties Union’s Florida chapter and Planned Parenthood. The group has reported that more than 250,000 petition signatures came from volunteers. “Most initiative campaigns never make it this far. The ones that do usually spend far more or take much longer to qualify, which is why we’re so confi- dent that voters will approve our amendment once they’re given a chance,” Lauren Brenzel, Flo- ridians Protecting Freedom campaign direc- tor, says. While recent public opinion polls indicate a majority of Floridians support abortion rights and would likely vote for the measure, the margin is thin enough to make it a close call on whether the item will lock up the su- permajority needed to pass. The initiative is a direct response to the U.S. Supreme Court’s overturning of Roe v. Wade in June 2022, which revoked the consti- tutional right to an abortion. Florida currently has a ban against abortions after 15 weeks of pregnancy, although a ruling is pending from the Florida Supreme Court in a lawsuit to strike down that ban. If the state’s high court upholds the ban, the legal fallout would ex- tend beyond a 15-week prohibition: a more stringent law that DeSantis approved in April of 2023 would subsequently go into effect, banning abortions after six weeks of gestation. Together with a marijuana legalization ballot item, the abortion rights initiative is set to be a critical driver of the turnout of Demo- cratic-leaning voters in the Sunshine State. Bad Comma? In order to pass the abortion rights measure, entitled “Limiting Government Interference With Abortion,” 60 percent of voters have to vote in favor of it — the threshold for amend- ing the state constitution by ballot initiative in Florida. In a statewide poll conducted by the Uni- versity of North Florida in the fall of 2023, 62 percent of respondents said they would vote yes on the measure should it appear on the 2024 ballot. More than half of Republicans polled in the 716-person survey indicated they would vote in favor of abortion rights. Of 2,020 Florida respondents surveyed by the Pew Research Center, about 56 percent said they believed abortion should be legal in “most cases.” (The poll did not specify a cut- off point in gestation after which the proce- dure would be prohibited.) In her Florida Supreme Court challenge, Moody is arguing the proposed ballot item is invalid because it does not precisely define the terms “viability” and “healthcare pro- vider” for voters and because the measure is murky as to whether the clause protecting “patient’s health” includes mental health. The attorney general’s office claims the ballot item also includes a conspicuously placed comma that makes it unclear to voters whether healthcare providers will be the fi- nal determiners of whether a fetus is viable. “The comma, in short, portends a poten- tially dramatic shift in lawmaking power from the legislature and the judiciary to pri- vate parties,” Nathan Forrester, Florida’s se- nior deputy solicitor general, argues in a brief. Floridians Protecting Freedom has coun- tered that the ballot text is straightforward and that the state is grasping at straws in try- ing to portray it as incomprehensible. The group says, “Nothing about the meaning of the term ‘viability’ in the phrase ‘abortion before viability’ is ambiguous or misleading here.” “It has a well-understood, commonly ac- cepted meaning amongst the general public that accords with its legal significance,” Flo- ridians Protecting Freedom told the court. In its reply brief, the group adds that the ballot item makes it clear that doctors will make the final determination on fetal viability — standard practice under Florida law, ac- cording to the brief. Dobbs v. Jackson Wom- en’s Health, the 2022 decision that struck down the constitutional right to abortion, ac- knowledged doctors’ role in viability deter- minations, the group says. “Far from marking a shift in decision-mak- ing authority, Florida statutes have long rec- ognized that healthcare providers, not the legislature, are responsible for making the vi- ability determination,” Floridians Protecting Freedom says. Floridians Protecting Freedom and Moody are also jousting over whether the ballot item is required to inform voters that some forms of abortion will remain illegal un- der federal law even if the item passes. Moody previously used a derivative of that argument in a successful bid to persuade the Florida Supreme Court to strike down a mari- juana legalization ballot item promoted by Make It Legal in 2021. Floridians Protecting Freedom claims, however, that the 2021 deci- sion hinged on a discrepancy between the ballot summary and the text of the proposed constitutional amendment. Home Front On the same day that Roe v. Wade was over- turned in 2022, dozens of Miamians took to the streets of Wynwood to protest against the decision. Miami Mayor Daniella Levine-Cava was at the protest, declaring her support for “my body, my choice.” Meanwhile, Republican politicians, in- cluding U.S. Rep. Carlos Gimenez of Miami, applauded the ruling. “With this decision, abortion rights will now be properly decided by the people’s elected representatives in their respective state legislatures, the place where rights not enumerated in the Constitution ought to be debated and decided,” Gimenez said. After it was announced the Florida abor- tion rights measure had lined up enough sig- natures to make it onto the 2024 ballot, Levine-Cava reiterated her stance. “This is proof that Floridians across the state value freedom, healthcare, and protect- ing our privacy rights from government in- trusion,” she said. As of December 29, the petition had ap- proximately 64,000 signatures from Miami- Dade County and another 90,000 from Broward County. There is no set timeline for when the Flor- ida Supreme Court will rule on Floridians Protecting Freedom’s ballot item and the new marijuana legalization measure proposed by Smart and Safe Florida, a group funded by cannabis industry giant Trulieve. Florida Democrats are hoping the items will mobilize voters to reclaim some of the ground lost in the 2022 midterm when Re- publicans had a strong showing and flipped Miami-Dade County to a majority vote for a Republican governor for the first time in two decades. Christopher Cano, a member of the Na- tional Organization for the Reform of Mari- juana Laws’ board of directors, previously told New Times that Moody is well aware of the role the ballot items will have in driving voters to the polls. “The state of Florida, under the direction of Ashley Moody as attorney general, is essentially trying to knock off any type of citizen initiatives for being on the ballot because they’re afraid of what the effects are going to be when it comes to voter turnout,” Cano said. Seven states have reportedly voted on abortion-related ballot measures since Roe v. Wade was overturned. So far, states have voted consistently and sometimes surpris- ingly in favor of abortion. In Montana, where former president Don- ald Trump won 56.9 percent of votes in 2020, voters defeated a measure to introduce sweeping restrictions and penalties against abortions. In purple Ohio, voters overwhelm- ingly approved a measure to enshrine the “right to make and carry out one’s own repro- ductive decisions” in their state’s constitution. In 2022, Kansas and Kentucky voters re- jected ballot items that sought to establish that their respective state constitutions en- gendered no right to abortion. [email protected] Residents march in Miami to protest the decision in Dobbs v. Jackson Women’s Health in June 2022. Photo by Joe Raedle/Getty Images | METRO | IN A STATEWIDE POLL, 62 PERCENT OF RESPONDENTS SAID THEY WOULD VOTE YES ON THE MEASURE.
