Will a Florida Ballot Measure to Protect Abortion Shake Up the State’s Politics This November?

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Will a Florida Ballot Measure to Protect Abortion Shake Up the State’s Politics This November?

Not only is Florida the last bastion of abortion access in the Southeast, it’s a state with the third highest number of electoral votes and a memorable record of swinging presidential elections.

I’m calling it now: Florida is going to be the most important state to watch in the 2024 election.

And it’s not because of that brief nightmare you just woke up from where Ron DeSantis was a presidential contender.

By April 1, the Florida Supreme Court will decide whether to allow Floridians to vote on a ballot measure that would enshrine a right to abortion until viability in the state Constitution, while allowing the state’s existing parental notification requirement to remain in place. As we’ve seen from the elections since the Roe was repealed, having an abortion-related initiative on the ballot has major ramifications for all other contests. In Michigan in 2022, an abortion ballot measure helped pull Democrats to victory in the governorship, the House, and the Senate.

It’s hard to overstate the stakes here. Florida not only is the last bastion of abortion access in the Southeast but also has the third-highest number of electoral votes and a memorable record of swinging presidential elections. Yes, Trump won the state in 2016 and 2020; the legislature has a Republican supermajority; and the governor flies asylum seekers to Martha’s Vineyard for kicks—but Obama won Florida in 2008 and 2012. More than a dozen states could vote on abortion in 2024, but none will be significant as Florida.

Until now, it’s been unclear whether the initiative would make it onto the ballot, because Florida has unusually high hurdles to clear. Could Floridians Protecting Freedom gather and verify almost 900,000 signatures from at least half of the state’s 28 congressional districts? Yes; they verified close to a million. The next hurdle is anti-abortion state officials and their court appointments. Florida Attorney General Ashley Moody filed a challenge to the proposed amendment, claiming that the language voters would see on the ballot is misleading. Her challenge was likely to find a receptive audience: Of the seven Florida Supreme Court justices who considered whether to uphold this challenge during a hearing on February 7, five were appointed by DeSantis and a sixth is married to a co-author of the state’s six-week ban.

Somehow, though, the hearing went well. Even Chief Justice Carlos Muñiz, a DeSantis appointee who led a private courthouse tour for abortion opponents in 2022, was skeptical of the idea that the ballot summary was misleading. “The people of Florida aren’t stupid,” Muñiz said. “They can figure this out.”

Sitting in the courtroom, Floridians Protecting Freedom campaign director Lauren Brenzel was pleasantly surprised. “I think what we couldn’t have anticipated was that some of our strongest quotes from the day would have come from Florida Supreme Court justices,” Brenzel told me.

But the next curveball for abortion access in Florida could come any day. Florida’s Supreme Court has been sitting since September on the question of whether the state’s existing 15-week abortion ban is constitutional. If the court upholds that ban, then the six-week ban signed by DeSantis would take effect 30 days later.

“That would be the largest single loss of abortion access in one day after the overturn of Roe v. Wade,” Brenzel told me.

Picture the South as a funnel, with a solid block of more than a dozen states sending patients into Florida. In 2023, even with the 15-week ban in place, more than 7,000 patients traveled to Florida for abortions, from states like Texas and Mississippi, where abortion is banned, and Georgia, which has a six-week ban, and from Central America and the Caribbean. “We see around 84,000 patients a year here. And we are one of only three states that don’t have a six-week ban currently enacted in the entirety of the Southeast,” Brenzel said. No state could come close to absorbing those 84,000 patients if abortion access in Florida is lost.

That makes defending abortion access in Florida a moral imperative, Andrea Mercado, executive director of Florida Rising, a grassroots organization working in Black and Latino communities, told me. “More Black women live in the South than anywhere else in the country; there are more Latina women in the South than in any other part of the country,” Mercado said. “So this is people’s lives and people’s futures at risk.”

Since launching last April, the campaign has raised over $16.8 million and hopes to raise $3.3 million in the first quarter of this year, Brenzel told supporters on a recent call. So far, much of that funding has come from donors and organizations based in the state, public records show. Some donors seem to be hedging their bets—despite polling showing high favorability for the initiative. Brenzel said the campaign’s polling so far is “consistent with about a decade of research here in Florida that shows that 70 percent and upwards of Floridians support access to safe and legal abortion.”

“There are a lot of people turning their backs on Florida that are disappointed by our political volatility,” Mercado said.

The Fairness Project, a major funder of progressive ballot initiatives that emphasizes its record of winning 32 of 34 ballot campaigns, has already begun bankrolling abortion initiatives in Arizona, Missouri, and Montana, but has stayed out of Florida so far, Politico reported.

“Florida is the poster child of a very unfriendly state for ballot measures,” Kelly Hall, the executive director of the Fairness Project, told Politico. In a statement to me on Thursday, the organization seemed to be reevaluating that decision, saying, “[W]e are thrilled to be diving in with Floridians Protecting Freedom to determine what our support of this campaign will look like once it qualifies for the ballot.”

The next step for the campaign is to clear the highest threshold in the country for a citizen-initiated amendment by getting 60 percent of the vote in November. Organizers will need to reach a diverse population of over 22 million people in 10 different media markets.

The group’s messaging, including the name Floridians Protecting Freedom, is geared at reaching a broad audience, including Republican and unaffiliated voters who agree with the idea of keeping the government out of personal decisions. The campaign also has a Spanish-language outreach arm for a state where more than a quarter of the population is Latino.

“There’s a lot that has been said about Latino voters in Florida, and who we are and what we believe,” Mercado said. “This ballot initiative gives us a tremendous opportunity to disrupt that narrative and show that Latina women in particular in Florida are much more progressive and believe in access to abortion.”

The most recent active voter numbers in Florida show 5.1 million Republicans, 4.4 million Democrats, and 3.5 million unaffiliated voters, which means it will likely take more than Democrats for the measure to succeed. But it’s not lost on the state’s Democratic Party that an abortion rights ballot initiative could be a golden opportunity, especially combined with a marijuana legalization initiative that has qualified for the ballot and whatever Taylor Swift has planned for her three concerts in Miami weeks before the election. It’s not as if voters outraged at the overturn of Roe have forgotten which party was responsible for it. Nikki Fried, chair of the Florida Democratic Party, said she’s “very optimistic about the outcome for ’24,” when the party’s candidates will make abortion one of their top three issues.

“What we’re seeing, not only in polling but electoral success in our state, is that the electorates are rewarding Democrats for standing up and fighting back and for being right on this issue,” Fried told me, pointing to elections that have flipped seats to Democrats in the Jacksonville mayoral race and the Florida House.

If the measure passes, and maybe even helps Democrats in down-ballot races, there’s another way the Florida ballot initiative could be historic, and that’s the Florida-style strategies state officials will likely deploy to stop it from taking effect. In 2018, nearly 65 percent of Florida voters backed an amendment to restore voting rights to most Floridians with past convictions. The legislature and Governor DeSantis quickly neutralized the measure with a law requiring these voters to pay off legal fees first. Then DeSantis’s new “election police” began arresting people for voting illegally.

Are the proverbial “Florida men” working on a similar strategy to blow up the will of the people when it comes to abortion?

Florida Supreme Court Chief Justice Muñiz seems to be doing just that. Despite indications that he thought the initiative’s language wasn’t misleading, at the hearing on February 7, he went on a tangent about fetal personhood that flummoxed everyone, including the lawyer making the state’s case against the amendment.

“Does the state have a position on whether an unborn child at any stage of pregnancy is covered by” the “basic rights” provision of the state Constitution? Muñiz asked.

“I’ll confess to your honor that this is not an argument I had thought about,” Nathan Forrester, the attorney arguing for the state, said.

Some of the justices seemed skeptical of the amendment’s viability clause, which plenty of proponents of abortion rights are skeptical of, too.

“This is a term and its meaning that have become a part of the cultural fabric of our nation,” Courtney Brewer, the attorney arguing on behalf of Floridians Protecting Freedom, told the court, an argument that likely made advocates who are trying to destigmatize and expand access to abortions later in pregnancy cringe.

Justice Renatha Francis, another DeSantis appointee, showed that the amendment’s viability clause might do little to neutralize anti-abortion messaging. While the amendment would explicitly allow the state legislature to ban abortion after viability except to preserve the patient’s health, Francis repeated the anti-abortion group’s Susan B. Anthony List’s claim that the initiative would allow “abortion without restriction for the entire nine months of pregnancy.”

Justice Jorge Labarga, who was appointed by former governor Charlie Crist, was silent through much of the hearing, which isn’t unusual for him, according to former Florida Supreme Court justice Barbara Pariente, who served with Labarga and thinks he will vote to allow the initiative to move forward. If the remaining three male justices, all of whom expressed skepticism over the state’s arguments, join him, that would clear the measure for the ballot, although the optics would be weird.

“If it ended up that four men voted to let the initiative go on the ballot, and the women didn’t, I’m sure I would be ready to write something about that,” Pariente told me.

However they rule on this question, the justices seemed certain that this wouldn’t be the last time they would get to consider this amendment.

“If this were to become part of the Constitution, it will be litigated forever,” Muñiz said.

Liberty Counsel, the anti-abortion legal group working with Florida officials to stop the amendment, seized on the opportunity to bolster Muñiz’s personhood queries after the fact. Two days after the hearing, Liberty Counsel submitted a brief listing the sections of Florida law that they say grant legal protection to an “unborn child” or “unborn person.”

So, add a potential showdown on fetal personhood, which has always been the anti-abortion movement’s endgame, to the list of ways Florida could make history. (Fetal personhood, or the idea that embryos and fetuses have rights equal to the pregnant person from the moment of fertilization, is a sweeping paradigm that could derail access to birth control and IVF.)

“While we know the anti-abortion movement’s primary investment is in personhood…we have yet to see any state Supreme Court actually really embrace it,” Mary Ziegler, law professor at the University of California–Davis, told me. “It would be next level if a right to abortion clearly was in the Constitution, and then you still had a court actually saying personhood trumps that.”

The path to victory is long and riddled with the kind of obstacles only Florida can come up with, but that’s not a reason to avoid the fight, abortion rights organizers told me.

“We can never give up on ourselves,” Mercado of Florida Rising said. “The only way to protect democracy is to engage it. I think if I know anything to be true, it’s that.”

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