The Giant Threat Lurking Behind Florida’s November Abortion Vote

Mark Joseph Stern / Slate

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The Florida Supreme Court seemed to offer a compromise Monday when it greenlit the state’s six-week abortion ban while simultaneously approving a ballot initiative that would, if enacted, create a constitutional right to reproductive freedom. And indeed, the court’s split decision offers hope that Floridians can reestablish their state as an abortion refuge in the South this November. But an ominous current lurked beneath the rulings: Six of the court’s seven justices appeared to endorse fetal personhood under the state constitution as it stands now, expressing support for—as one justice put it—“the unborn’s competing right to life” over the patient’s right to bodily autonomy. The majority’s rhetoric indicates that if the pro-choice amendment fails this fall, the Florida Supreme Court remains ready to grant fetuses and embryos a constitutional right to life that prohibits the Legislature from legalizing abortion in the future.

There’s no doubt that this court is supremely hostile to abortion. In its first decision on Monday, the conservative supermajority overturned decades of precedent protecting access to abortion under the Florida Constitution’s right to privacy. In 1980 voters enshrined this right, the cornerstone of Roe v. Wade, into the state’s founding charter, with an evident understanding that it would safeguard reproductive autonomy. Yet, by a 6–1 vote, the court gutted the amendment by ignoring historical evidence of its broad original meaning. At the same time, by a 4–3 vote, the court upheld a proposed amendment that would restore an expansive right to abortion access throughout the state. It will require 60 percent support to pass in November.

This second ruling might seem to temper the majority’s hostility toward reproductive freedom. Not quite: Piecing together the fractured opinions, it becomes clear that six justices stand ready to institute fetal personhood under existing state law. The disagreement among this far-right supermajority comes down to tactics, timing, and deference to democracy. Three are prepared to now wield fetal personhood as a sword against any expansion of abortion, even by constitutional amendment. Three are waiting to impose personhood if the upcoming amendment fails and will not weaponize the doctrine today to keep the initiative off the ballot. (All but one of these justices were appointed by Gov. Ron DeSantis.) Just a single justice, Jorge Labarga—who dissented from the court’s first decision gutting the right to privacy—declined to board the personhood train.

Notably, the parties to the ballot initiative case did not focus on fetal personhood until Carlos Muñiz, the DeSantis-appointed chief justice, injected it into oral arguments in February. Muñiz quoted an existing provision of the Florida Constitution that states that “all natural persons” are “equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty.” He pressed lawyers defending the initiative to explain why “the term ‘natural person,’ as a matter of just, ordinary meaning, doesn’t include the unborn,” adding: “We certainly talk about the unborn that way.” Later, Muñiz suggested that the initiative might unconstitutionally abridge the rights of fetuses by expanding the rights of doctors and patients.

Before this point, the initiative’s opponents had focused on highly technical arguments to kill the amendment, claiming (absurdly) that words like viability and health lack a clear meaning. After Muñiz’s questions, they pivoted to personhood. Anti-abortion groups like the Susan B. Anthony foundation, the Conference of Catholic Bishops, and Liberty Counsel filed unusual “supplemental briefing” to promote the idea that the amendment would violate fetuses’ rights. Liberty Counsel highlighted the Alabama Supreme Court’s notorious decision establishing embryonic personhood, asserting that the Florida Supreme Court should do the same. One abortion foe rushed out a law review article purporting to show that the original meaning of the Florida Constitution grants equal rights to “the preborn child.” These advocates insisted that the initiative was invalid for failing to inform voters that it would roll back existing constitutional rights for the “unborn.” They urged the court to hold that the state constitution already grants fetuses and embryos a fundamental “right to life” and that any amendment legalizing abortion must, at a minimum, clearly state to voters that it would nullify this right.

Three justices—Jamie Grosshans, Renatha Francis, and Meredith Sasso—adopted that argument in dissents on Monday. In a dissent joined by Sasso, Grosshans wrote, “The public should be made aware that the scope of the amendment could, and likely would, impact how personhood is defined” by Florida law. The sheer “breadth of the amendment,” she went on, would undermine fetuses’ “right to enjoy and defend life” under the state constitution. Yet the initiative does not “identify” this fact, preventing the public from “fully comprehend[ing] the contemplated changes” to fetuses’ fundamental liberties. This lack of “candor and accuracy,” Grosshans concluded, renders the proposal invalid.

Francis, in her own dissent, went even further, openly condemning abortion and mocking the notion that there could ever be a “right” to terminate one’s pregnancy. “The exercise of a ‘right’ to an abortion,” the justice wrote, “literally results in a devastating infringement on the right of another person: the right to live. And our Florida Constitution recognizes that ‘life’ is a ‘basic right’ for ‘[a]ll natural persons.’ ” The proposed amendment, Francis continued, cannot go to the ballot because it conceals its impact on this “basic right” of fetuses. “One must recognize the unborn’s competing right to life,” she concluded, “and the state’s moral duty to protect that life.”

Ironically, Muñiz himself voted to let the initiative go to the voters. But he penned a concurrence, joined by Justices Charles Canady and John D. Couriel, declaring that he was none too happy about it. The Florida Constitution—including the “right to life” provision cited by the dissenters—“assumes a pre-constitutional, objective moral reality,” Muñiz wrote. The proposed amendment would clash with this “moral reality” by “constitutionaliz[ing] restrictions” on the state’s ability “to protect an entire class of human beings”—that is, fetuses—from “private harm.” The amendment would also “cast into doubt” the state’s authority “even to enact protections that are prudent, compassionate, and mindful” of fetuses’ liberties. To Muñiz, Canady, and Couriel, however, this solicitude for fetuses’ rights must yield to “the people,” in whom “all political power is inherent.” If the people wish to strip personhood from fetuses by constitutional amendment, Muñiz suggested, the court has no power to stop them.

These opinions add up to an alarming revelation: Six Florida justices want to constitutionalize fetal personhood in the state right now. Three of them—Grosshans, Sasso, and Francis—are so devoted to the principle that they would use it to prevent Floridians from legalizing abortion via ballot initiative. Three more—Muñiz, Canady, and Couriel—are reluctantly willing to let the people overturn fetal personhood by popular vote, at a 60 percent threshold, if they so choose. But the fact remains that all six believe that personhood is the law of Florida today.

This supermajority’s commitment to the equal rights of fetuses and embryos has far-reaching implications. It means that if the initiative fails in November, the Legislature may never be able to loosen the state’s current restrictions on abortion. Constitutionalizing fetal personhood would entrench the six-week ban—and raise the possibility of a court-imposed ban that goes even further, outlawing abortion from the moment of conception, with no exceptions. The Florida Supreme Court could implement this total ban on the grounds that it is necessary to protect the constitutional liberties of embryos and fetuses, following the lead of the Alabama Supreme Court. If a future Legislature tried to roll back the ban—by, for instance, allowing more exceptions or pushing the gestational limit to viability—the judiciary could block it, invoking the rights of “the unborn.” It could also effectively prohibit in vitro fertilization by banning the disposal of embryos as the unlawful killing of a human child. Six of the seven current justices are already laying the groundwork for such a decision. And five of those six justices have decades left in their terms on the bench.

So the stakes for November are even higher than they already seem. Should the initiative fall short of the 60 percent mark, the Florida Supreme Court apparently stands ready to hold that embryos and fetuses are “natural persons” under the constitution, forestalling any other democratic efforts to reinstate reproductive freedom, including IVF access. The justices are not exactly hiding the ball. Florida voters are on notice: This amendment may be their last, best chance to thwart the court’s push for fetal personhood, their final opportunity to elevate the real-world rights of actual people over the theoretical interests of fetuses. If the initiative fails, no can say that voters weren’t warned about what will come next.