Will Voters Have the Final Say on Abortion Rights in Florida?

At first glance, recent decisions from the Florida Supreme Court suggest that the court has charted a path for voters to decide whether abortion is protected in the state. But even if Florida citizens pass an abortion rights amendment this fall, state legislators and courts could undermine those rights by interpreting them narrowly or increasing protections for fetuses.

On April 1, the Florida Supreme Court issued two important opinions regarding abortion. The court held that the state constitution’s privacy provision does not include a right to abortion, and it held that a proposed citizens’ initiative to amend the state constitution to protect abortion rights can appear on this fall’s ballot.

The rulings came against the backdrop of two restrictive abortion laws adopted by the state. The first is a 15-week ban, which the court upheld on April 1 and which is now in effect. The second is a more restrictive 6-week ban that will take effect 30 days from the court’s ruling. As a result, abortion after 6 weeks will be mostly illegal in Florida starting on May 1, with exceptions until 15 weeks for the patient’s health, rape, and incest.

In its ruling on the ballot initiative, the court found that the proposed language satisfied and statutory rules for clarity and the constitutional requirement that an initiative address only one subject. The Florida Division of Elections has already verified that the petition has garnered enough signatures for the ballot. The Florida Financial Impact Estimating Conference has issued the required financial impact estimate to inform voters of the initiative’s economic impacts. At this point, it seems, all that remains is for the ballots to be prepared and the election administered. If the initiative is approved by 60 percent of voters who weigh in on the question, a right to abortion will be enshrined into the state’s constitution on January 7, 2025, invalidating the state’s 6-week ban.

However, given strong opposition to the initiative by Gov. Ron DeSantis and Republican legislators, there is a possibility that voters might not get the last word after all.

Should the initiative pass, the legislature and governor could engage in what I have described elsewhere as “implementation sabotage.” Over the years, Florida state government has developed sophisticated countermeasures for avoiding or undermining initiatives after voter ratification. For example, after voters approved the 2018 amendment restoring voting rights to people previously convicted of felonies, the legislature adopted a law purporting to implement the initiative, but which required individuals to repay all court costs and fines before regaining the right to vote. This effectively reduced the number of re-enfranchised voters by almost 80 percent, in part because the state lacks a reliable system for people to be sure of how much they owe.

The abortion rights initiative provides that “no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.” This language leaves room for implementation sabotage by state government. Indeed, dissenting justices in the ballot initiative ruling said the wording was vague and would require further definition by courts and, presumably, the legislature.

One could imagine, for example, laws that define the “health” of a pregnant patient very narrowly to include only instances of certain death or “viability” as very early in a pregnancy. Other laws might require “healthcare providers” to take proscribed courses or apply for specialized licenses before providing abortions. Still others might regulate or overly tax medical instruments needed for surgical abortions or drugs used in medication abortions. These types of laws might be invalid under the new amendment, but declaring them unconstitutional would require further litigation. In the meantime, the legislature would have undermined and delayed the initiative’s full effect.

In yet another scenario, raised by reproductive rights scholar and historian Mary Ziegler, the court could use fetal personhood to dismantle an amendment protecting abortion. The majority already suggested in the ballot initiative opinion that “preborn human beings [might be] constitutional persons” with “inalienable rights, among which are the right to enjoy and defend life.” And Justice Renatha Francis explicitly said in her dissent that “the exercise of a ‘right’ to an abortion literally results in a devastating infringement on the right of another person: the right to live.” 

What if voters approve the initiative, and the court subsequently takes up the question of fetal personhood under other state constitutional provisions? In general, if two provisions are irreconcilable, the court will interpret the more specific and recent provision — here, the abortion amendment — as displacing the more general preexisting provision. There are, however, some wrinkles.

For example, recall that the initiative allows abortion regulation after viability. The court could interpret the permissibility of such regulation as an implicit recognition of fetal personhood after viability. That interpretation of the meaning of the abortion amendment might allow significant post-viability restrictions — even when a pregnant patient’s health is at issue — on the theory that the rights of two “persons” are now implicated.

Second, most state constitutions recognize a distinction between amendments, which are discrete minor adjustments, and revisions, which involve fundamental restructuring. Revisions are subject to more onerous processes before approval, such as passing through a constitutional convention or the legislature. Amendments are sometimes challenged as revisions in disguise. For example, when conservative states adopted amendments limiting marriage to heterosexual couples in the early 2000s, civil rights groups argued — unsuccessfully — that those changes were actually revisions of a deep and foundational commitment to human equality. Fetal-personhood advocates could argue that Florida’s abortion initiative is a foundational revision because it redefines the meaning of “natural persons” and effectively exempts an entire class of persons from the full panoply of constitutional protections.

The difficulty of such an argument is that the revision process in Florida is not much more onerous than the ordinary amendment process. The constitution allows for initiative petitions to propose revisions so long as they address only a single subject — a requirement the court already ruled the proposed text protecting abortion meets. Moreover, the court’s single-subject jurisprudence allows for consideration of the degree to which a proposed initiative will impact existing constitutional provisions. In short, if the court was concerned that the abortion initiative would completely rework the structure of constitutional rights in Florida, it could have held as much in its recent ruling. 

In another — very unlikely — scenario, the secretary of state could simply refuse to place the initiative on the ballot. He might assert that he need not adhere to the court’s opinion because it is merely advisory, and say that he believes the initiative improperly addresses multiple subjects or has an unclear summary. DeSantis has already stated that he disagrees with the court’s approval of the initiative and that he “thinks the language is very confusing.” 

The secretary has given no indication he is considering this path, but these sort of power plays within state government are happening more frequently. Last week, the Arizona attorney general issued a statement that she would not enforce an 1864 abortion ban that the Arizona Supreme Court recently ruled was valid and enforceable.

If the Florida secretary of state were to take this path, backers of the initiative would likely petition the court for a writ of mandamus — a common law remedy that allows a court to order government officials to perform their public duties — requiring the secretary to place the initiative on the ballot. Given its opinion allowing the initiative to move forward, it seems likely that the court would grant such a petition. But resulting delays and uncertainty could be costly for the public campaign in support of the initiative.

There’s one scenario left to discuss. What if the initiative fails this fall? Should that happen, abortion will continue to be illegal after six weeks in Florida. And should the court endorse constitutional fetal personhood, any future legislatures would be unable to allow abortion absent another constitutional amendment.

The stakes are high, and the outcome uncertain. A lot turns on what voters decide — but the election is unlikely to finally resolve the abortion issue in Florida. 

Jonathan L. Marshfield is an associate professor at the University of Florida Levin College of Law, where he teaches and writes in the areas of local government law, state constitutional law, and constitutional change.