Opponents to the upcoming ballot amendment question regarding abortion rights say it's unclear. Louis Virelli, constitutional law professor at Stetson University College of Law, says otherwise.
“I think the amendment is actually a very straightforward explanation of what it's trying to achieve. And for those of us that have been following the jurisprudence of abortion for decades, it's a pretty clear statement of, effectively, the holding in Roe v. Wade,” Virelli said.
The amendment uses the term viability, which Virelli said “has meant 23 or 24 weeks (of pregnancy) since 1973,” when Roe v. Wade was decided.
“The prohibition on, or the language that says prohibit, penalize, delay or restrict abortion is followed immediately by a qualifier that says before viability,” Virelli said, referring to the amendment. “That is what Roe said. From 1973 until 2022, when the Supreme Court overturned Roe, the law in America was you cannot prohibit an abortion before viability. People of my age have lived under that regime their entire lives. To protect maternal health was also a holding in Roe. So since 1973, a state can prohibit abortion after viability unless maternal health is at stake.
“Is that a tricky term? It could be for sure, and judges have had to think about that term, and legislature had to think about that term. But it's not a new standard. We've been dealing with this for half a century.”
If passed, Amendment 4 would effectively enshrine Roe v. Wade protections in Florida, Virelli said.
“So if people are trying to just think of what their lives will be like, legally, it will be the way your life was, the way you experienced the law of abortion from 1973 to 2022.”
"I think if you are in favor of abortion not being available after six weeks, or you're in favor of the current state of Florida abortion law, six-week ban with exceptions, then you should vote no on the amendment. If you are in favor of an abortion regime that looks like Roe v. Wade, then you should vote yes on the amendment."Louis Virelli
Financial impact statement
Virelli explained that the financial statement tied to the amendment was based largely on litigation costs.
“So to the extent that litigation is driving the costs, right, there was a lot of litigation around the 15-week ban, and that didn't seem to be something that the state balked at. So this is going to happen. Will it cost real money? For sure. Is it unusual? No, and it's not really attributable to the abortion access issue that the amendment's targeted at.”
He added litigation will come up as laws passed by the Legislature are challenged for violating the measure. Examples of that may include a parental consent law.
The Florida Supreme Court’s say
Any efforts by the Legislature to enact such laws will be met by the state’s highest court.
“… ultimately, the Florida Supreme Court will be the final word as to whether those laws comply with the amendment,” he said. “That's a really important thing for people to understand, right? This amendment doesn't work magically in our lives. It is a baseline against which legislation from the Florida Legislature will be judged, and that still remains to be seen.”
Back in April, a Florida Supreme Court ruling allowed for the abortion measure to go on the November ballot. The court also upheld a 15-week abortion ban, opening the door for the current six-week ban to take effect.
“What they had before them was a 15-week ban,” Virelli said, referring to the Florida Supreme Court justices. “They could have just said the 15-week ban is OK and moved on. They made a bigger decision, and that's their prerogative. They are Supreme Court justices. They reread the Florida constitution differently than it had been read since 1989 to say there is no protection for abortion in the current Florida constitution.”
Virelli said their decision “wipes the slate clean.”
“It doesn't mean that there aren't any protections under law. There's a statute, but the Florida constitution is not currently protecting abortion.”
How does Amendment 4 differ from other amendments?
Virelli said the choice offered to Floridians in November on abortion access is clear cut — unlike other measures that have appeared on ballots in the past.
“Florida constitutional amendments, I found to be in the past confusing sometimes, right? It's not always clear to me over the last 20 years, when I'm voting on an amendment, what it means. I don't think we have that problem this time. I think if you are in favor of abortion not being available after six weeks, or you're in favor of the current state of Florida abortion law, six-week ban with exceptions, then you should vote no on the amendment. If you are in favor of an abortion regime that looks like Roe v. Wade, then you should vote yes on the amendment.
“And I think that is helpful to voters, and I'm hoping will be encouraging to them to go exercise their franchise, to go vote, because you have a pretty clean choice.”
