Ever since the United States Supreme Court issued Roe v. Wade[i] on January 22, 1973, pro-life advocates have been praying for, and steadily working toward, the day when this ill-advised court decision would be overturned.  If Roe were to be overruled, many pro-life advocates anticipate that the Supreme Court would return to the pre-1973 status quo regarding abortion.  That is, the Supreme Court would allow each state once again to determine abortion’s legality within its own borders.  Several states, such as Michigan[ii] and West Virginia,[iii] have never repealed their pre-Roe statutes that outlaw abortion.  Other states, like Missouri,[iv] have passed so-called trigger laws, which would automatically ban most or all abortions when the Supreme Court reverses Roe. 

 

In a post-Roe America, states that do not fit into either category above could prohibit abortions by enacting new statutes or by amending their constitutions. This article examines the challenges that pro-life advocates will face if they seek the latter option in the state of Florida, which has been labeled “the toughest state in America to get a constitutional amendment passed.”[v]   

 

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I.  The Current Constitutional Amendment Process in Florida

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Presently, there are five distinct ways to propose amendments to the existing Florida Constitution, which was ratified in 1968.  First, the Florida Constitution can be replaced in its entirety, or amended in part, by a duly enacted constitutional convention.[vi]  Second, the Legislature is authorized to pass a joint resolution, in which a proposed amendment “must be agreed to by three-fifths of the membership” of each legislative chamber.[vii]  Third, the Constitution Revision Commission, which every twenty years convenes to examine the Florida Constitution, may propose an amendment.[viii]  Fourth, the Taxation and Budget Reform Commission is empowered to propose constitutional amendments “dealing with taxation or the state budgetary process.”[ix]  Finally, a constitutional amendment may be proposed through a citizens’ initiative.[x]  Regardless of how a constitutional amendment or revision is proposed, however, it must be placed before Florida voters and secure the approval of at least sixty percent “of the electors voting on the measure.”[xi] 

 

In recent times, a common way to propose an amendment to the Florida Constitution has been through the citizens’ initiative option – and the one most likely to be utilized by pro-life advocates, given the limitations of the four alternatives.[xii]  Nonetheless, there are rigorous requirements for getting a proposed constitutional amendment on the ballot via a citizens’ initiative.  Per the Florida Constitution, a citizens’ initiative “must embrace but one subject and matter directly connected therewith” (unless it relates to limiting the power of government to raise funds).[xiii]  Moreover, the Florida Constitution mandates that a sponsor of a citizens’ initiative must collect signatures:

 

In each of one-half of the congressional districts of the state, and of the state as a whole, equal to eight percent of the votes cast in each of such districts respectively and in the state as a whole in the last preceding election in which presidential electors were chosen.[xiv]  

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Thus, for a proposed constitutional amendment to appear on the 2018 or 2020 general election ballot via a citizens’ initiative, a sponsor must have collected at least 766,200 valid signatures from registered voters, which equaled eight percent of the voters who voted in the 2016 presidential election.[xv]  Additionally, since Florida currently has twenty-seven congressional districts, the eight percent threshold had to have been met in at least fourteen, i.e. half, of those districts.[xvi]     

 

In addition to the constitutional requirements outlined supra, the Florida Legislature has placed further conditions on citizens’ initiatives through a complex statutory scheme, which has been made even more difficult with changes that were passed during the 2020 Legislative Session and that thereafter went into immediate effect on April 8, 2020, following the governor’s approval.[xvii]   Under current Florida law, a sponsor that intends to circulate a proposed constitutional amendment via a citizens’ initiative must first register as a political committee and have the petition format approved by the Florida Secretary of State’s office.[xviii]  Once those requirements have been met, petitions may be circulated.[xix]  As petition signatures are collected, “the sponsor shall submit signed and dated forms to the supervisor of elections for the county of residence listed by the person signing the form for verification of the number of valid signatures obtained.”[xx]    

 

Under the new 2020 changes, petition signatures are only valid until February 1st of the next even-numbered year instead of for two years.[xxi]  For example, a petition signature signed on May 1, 2020, will now only be deemed valid until February 1, 2022, instead of May 1, 2022.  Another significant change concerns the threshold that triggers the Florida Supreme Court’s automatic review of the proposed constitutional amendment.  Prior to April 8, 2020, Florida Statute 15.21 required that, once county supervisors of elections had verified petition forms equal to ten percent of the statewide total needed from at least one-fourth of Florida’s congressional districts, then the Secretary of State was required to start the process for automatic review by the Florida Supreme Court.[xxii]  Now, however, the percent of signatures required is twenty-five percent of the statewide total needed – and they must now come from one-half (instead of one-fourth) of Florida’s congressional districts.[xxiii]  Consequently, petition sponsors will have to expend more resources to trigger a review.

 

Once the trigger threshold for review is met, the Secretary of State sends the proposed constitutional amendment text to the state Attorney General, who must then petition the Florida Supreme Court for an advisory petition on whether the proposed amendment meets the Florida Constitution’s single-subject-matter requirement,[xxiv] whether its title and language are sufficiently clear,[xxv] and “whether the proposed amendment is facially invalid under the United States Constitution.”[xxvi]  The last requirement is new and is part of the changes that the Legislature enacted during its 2020 session.[xxvii]  If the proposed amendment survives the Florida Supreme Court’s review, all the signature requirements discussed supra must still be met – and then the proposal needs to secure sixty percent or more of the vote during the general election in order to become effective.[xxviii] 

 

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II.  Amending the Florida Constitution May Get Even Harder after    the November 2020 Election

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As difficult as the current constitutional amendment process is in Florida, especially vis-à-vis the citizens’ petition option, it might very well get even tougher.  On the 2020 general election ballot is a proposed constitutional amendment that would require voters to approve any future constitutional amendments twice.  That is, “instead of a single referendum requiring the approval of 60 percent of voters, this amendment would double the requirement.  Constitutional amendments would need to get 60 percent approval in two separate elections.”[xxix]  If this proposed amendment were to pass, pro-life advocates would need to win twice at the ballot box – and win overwhelmingly – in order to successfully amend the Florida Constitution to prohibit most or all abortions. 

 

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III. The Problematic Privacy Amendment to the Florida Constitution  

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Prior to the U.S. Supreme Court’s decision in Roe, supra, Florida had begun to loosen its abortion restrictions.  On February 14, 1972, the Florida Supreme Court issued its decision in State v. Barquet,[xxx] invalidating the state’s statutory ban on most abortions, which had been enacted over one hundred years before.[xxxi]  The state’s highest court ruled that the statutory ban violated the due process protections encapsulated in Article 1, Section 9 of the 1968 Florida Constitution, but it also importantly held:

 

This decision does not have the effect of legalizing abortions, as that is a matter solely for the legislative branch of government. Abortions must now be punished as a common-law offense as provided in Fla. Stat. § 775.02, F.S.A., which is hardly adequate under present-day standards to properly protect society. Those who have been previously convicted receive no comfort, for, as discussed above, this opinion is prospective only. We urgently commend this important area of great social concern for appropriate remedial legislation.[xxxii] 

 

Due to an emboldened abortion rights lobby, however, “the remedial legislation” the Legislature enacted in the spring of 1972 was modeled after the abortion section in the Model Penal Code (as developed by the American Law Institute), which permitted abortion under the following circumstances:

 

1. When necessary to protect the life or health of the mother;

2. When there is a substantial risk that the child will be born defective; and

3. If the pregnancy resulted from rape or incest.[xxxiii]

 

Still, abortion rights proponents did not think such liberalized laws went far enough for their purposes.  Thus, when Roe was imposed on Florida and the rest of the nation less than a year later, pro-abortion rights proponents received from the U.S. Supreme Court what the Florida Supreme Court had not been willing to give them in Barquet, supra: the full legalization of abortion by judicial fiat.

 

But in the years following Roe, supra, the Florida Supreme Court transformed into a hotbed of abortion rights activism.  In 1980, Florida voters approved the following amendment to the state Constitution:

 

Right of privacy. Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.[xxxiv]

 

Since that amendment’s ratification, the Florida Supreme Court has repeatedly found “the amendment embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution.”[xxxv]  Consequently, the court has interpreted this privacy amendment to the Florida Constitution as guaranteeing Florida women the right to access abortion.[xxxvi]  This interpretation has yet to be overturned by the Florida Supreme Court, which means that, even if Roe was overruled tomorrow, state courts would likely invalidate any statutory abortion bans because they would be in violation of the state Constitution’s right to privacy.

 

To get around the privacy amendment, in 2004, Florida lawmakers passed a joint resolution that proposed the following constitutional amendment (which voters then approved after it was placed on the general election ballot that year):

 

Parental notice of termination of a minor’s pregnancy. — The Legislature shall not limit or deny the privacy right guaranteed to a minor under the United States Constitution as interpreted by the United States Supreme Court. Notwithstanding a minor’s right of privacy provided in Section 23 of Article I, the Legislature is authorized to require by general law for notification to a parent or guardian of a minor before the termination of the minor’s pregnancy. The Legislature shall provide exceptions to such requirement for notification and shall create a process for judicial waiver of the notification.[xxxvii]

 

Per the authorization of this constitutional amendment, the Legislature subsequently adopted a parental-notification-prior-to-an-abortion statute, which was upheld as constitutional.[xxxviii]  Despite this success, the privacy amendment continues to hamper the implementation of other pro-life measures.  For example, in 2015, Florida enacted a statute that required a woman wait twenty-four hours prior to undergoing an abortion.[xxxix]  However, five years later, this commonsense measure still has not gone into effect, as the state courts continue to hold it in legal limbo.[xl]  In 2018, when the Constitution Revision Commission last met, pro-life advocates sought to take the opportunity to revise the privacy amendment, but their efforts failed.[xli]   

           

Two years later, in 2020, the Legislature passed, and the governor signed, Florida Senate Bill 404, which requires a minor to obtain parental consent prior to having an abortion.[xlii]  Although pro-abortion rights advocates had promised they would sue to stop the implementation of this new law, they did not.[xliii]  The reason is most likely because they did not want to risk the Florida Supreme Court reinterpreting the privacy amendment to disfavor abortion rights.[xliv]  Since Republican Governor Ron DeSantis was inaugurated in January 2019, the state’s highest court has come under conservative control, thanks to a number of appointments that the governor has made to the court.[xlv]  Still, no one really knows for sure how the current Florida Supreme Court will actually rule on the privacy amendment should a case implicating abortion come before the court.       

 

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IV.  Proposed Pro-Life Amendments: Personhood and the Human Life Protection Amendment

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Some pro-life advocates in Florida have been attempting to utilize the citizens’ petition option to amend the state Constitution.  Florida Division of Elections records show that the Personhood Florida Political Action Committee was first established in late July 2009 – over a decade ago.[xlvi]  On December 26, 2013, the Florida Secretary of State approved the following proposed constitutional amendment for circulation as a citizens’ petition:

 

SECTION 28.  The Right to Life of All Persons Recognized and Protected

 

The God-given right to life of every human being at any stage of development shall be recognized and protected.  This provision shall be deemed to supersede any other inconsistent provisions.[xlvii]

 

Although this proposed constitutional amendment has never gained enough signatures for the Florida Supreme Court’s automatic review – let alone to make the general election ballot – its circulation as an authorized petition apparently remains in active status, according to the Florida Division of Elections.[xlviii]  Yet, it also appears that it is not a serious undertaking.  State campaign finance records indicate that the Personhood Florida Political Action Committee has only raised a total of $7,490.00 since its formation in 2009 – and has, in fact, received no contributions after March 2013.[xlix]

 

More recently, another pro-life citizens’ initiative has been organized.  On October 25, 2019, the Protect Human Life Political Action Committee was created.[l]  It is the sponsor of the following proposed constitutional amendment that was authorized for circulation on November 4, 2019:

 

Human Life Protection Amendment

 

(a) RIGHTS. All human beings have a right to life regardless of age, illness, or disability when there is a detectable heartbeat.

(b) APPLICABILITY. This amendment is not intended to impede medical management of an ectopic pregnancy, law enforcement operations, or imposition of the death penalty for a capital offense.

(c) IMPLEMENTATION. Within 12 months of the effective date of this section, the Legislature shall enact legislation to implement this section in a manner fully consistent with its purpose.[li]

 

Given the challenges of the on-going COVID-19 pandemic, the Protect Human Life Political Action Committee has only received a little more than $15,000.00 in contributions and has expended almost all of those funds.[lii]

 

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V.  Pro-Life Advocates Face Significant Obstacles in Amending the Florida Constitution  

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The purpose of this article is not to opine on the efficacy of pro-life advocates’ current attempts to amend the Florida Constitution while Roe, supra, remains – at least for the time being – intact.  Rather, the goal here is to shed light on the reality that pro-life advocates will face in the future if and when Roe finally meets its demise.  Unfortunately, that reality is stark.  If amending the Florida Constitution to guarantee the right to life of unborn children is to be accomplished, many obstacles will need to be overcome.

 

To begin with, pursuing a successful citizens’ initiative will require an extraordinary number of volunteers who will need to cover most of the state in order to gather the required signatures.  As discussed supra, the Florida Legislature recently imposed new thresholds to trigger the Florida Supreme Court’s automatic review.  These increased thresholds will now require the initial collection of perhaps as many as one-hundred-thousand more signatures – and from more areas of Florida – before the sponsor knows for sure that the proposed constitutional amendment meets all applicable requirements for placement on the ballot.  If the Florida Supreme Court does not give its approval, the sponsor will have wasted more resources on a failed petition gathering effort than it would have prior to the Florida Legislature’s adoption of the increased thresholds.  

 

Moreover, as noted supra, the Florida Supreme Court is now required to judge “whether the proposed amendment is facially invalid under the United States Constitution.”[liii]  This recently-imposed requirement may put an extra burden on pro-life advocates’ attempts to amend the Florida Constitution.  If, for example, Roe, supra, had not yet been overruled and either the Personhood Amendment or the Human Life Protection Amendment, discussed supra, were to trigger the Florida Supreme Court’s review prior to placement on the 2022 general election ballot, a Florida Supreme Court majority (whether conservative or not) could very well rule both  “facially invalid under the United States Constitution.”  But even if Roe were to be overruled, the new requirement gives the Florida Supreme Court an extra option to derail a proposed pro-life amendment, especially if Roe is not entirely overruled or if the decision overruling Roe is muddled and subject to “interpretation.” 

 

Perhaps the biggest future roadblock to getting a proposed pro-life constitutional amendment passed, whether via a citizens’ initiative or through one of the other applicable ways, will be voter approval.  In 2004, when the proposed constitutional amendment, entitled, “Parental notice of termination of a minor’s pregnancy,” went before voters it passed with nearly sixty-five percent of the vote.[liv]  At the time, the threshold for passage was a simple majority.  The amendment, though, was hugely popular with the general public, just like most parental notification and consent statutes typically are.  In 2006, Florida voters approved a constitutional amendment that increased the percentage needed to win to sixty percent.[lv]  If a post-Roe proposed amendment ensuring the right to life of unborn children makes it to the ballot, it will surely not be as popular as the 2004 amendment.  For pro-life advocates, convincing sixty percent of voters to approve of such an amendment, as opposed to a simple majority, will be a herculean task. 

 

The job of getting voter approval will be even more daunting if Florida voters approve of the proposed constitutional amendment on the 2020 general election ballot discussed supra.  That amendment to the Florida Constitution will require all future proposed amendments to be approved twice – in two separate elections with sixty percent of the vote each time.  Unfortunately, this proposed amendment has the strong backing of the conservative establishment, such as the Florida Chamber of Commerce, and its sponsor, “Keep Our Constitution Clean,” has reportedly spent over nine million dollars in an effort to get it approved.[lvi]  It is likely that many pro-life citizens will end-up voting for this amendment without realizing that its passage will make enacting future pro-life amendments to the Florida Constitution almost impossible.

 

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VI.  Conclusion  

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This article explored the demanding process to amend Florida’s Constitution, which awaits pro-life advocates who may want to pursue an amendment banning abortions, if and when Roe v. Wade, supra, is overruled.  The truth is, the amendment process has been consistently getting more difficult over the last two decades.  Nonetheless, it might be the only way forward if the privacy amendment to the state Constitution continues to block efforts to protect unborn children.  Considering Roe has yet to be overruled, some on-going pro-life efforts to amend the Florida Constitution have not gained much momentum.  But even if they were to catch fire in the aftermath of Roe’s reversal, it will take massive amounts of resources, and maybe just the right circumstances, to bring them over the finish line.  Given the weighty obstacles outlined in this article, pro-life advocates have to be clear-eyed about their chances for victory if they pursue an amendment to the state Constitution that will ban Florida abortions in a post-Roe America.

 

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[i] Roe v. Wade, 410 U.S. 113 (1973).  Equally significant, although perhaps less well-known to the general public, is Doe v. Bolton, 410 U.S. 179 (1973).  The decision in Doe was also issued on January 22, 1973.  Whereas Roe held that states could prohibit abortions in the third trimester of pregnancy if a ban allowed for a women’s health exception, in Doe the Supreme Court defined “health” so as to include “all factors – physical, emotional, psychological, familial, and the women’s age – relevant to the well-being of the patient.”  Doe, supra, at 192.  Thus, Roe and Doe together effectively legalized abortion on demand throughout the country and up until the moment of birth.   

[ii] See MCL § 750.14.  See also, People v. Bricker, 389 Mich. 524; 208 N.W.2d 172 (1973).

[iii] W. Va. Code Ann. § 61-2-8.  See also, Doe v. Charleston Area Medical Center, Inc., 529 F.2d 638 (4th Cir. 1975).

[iv] See MO. Rev. Stat. § 188.017.

[v] Mitch Perry, “It’s not just Florida – politicians are trying to restrict citizen ballot initiatives all over the U.S.” Florida Phoenix.  April 4, 2019.  Available at: https://www.floridaphoenix.com/2019/04/04/its-not-just-florida-politicians-are-trying-to-restrict-citizen-ballot-initiatives-all-over-the-u-s/

[vi] Florida Constitution, Article XI, Section 4.

[vii] Florida Constitution, Article XI, Section 1. 

[viii] Florida Constitution, Article XI, Section 2.

[ix] Florida Constitution, Article XI, Section 6(e).

[x] Florida Constitution, Article XI, Section 3.

[xi] Florida Constitution, Article XI, Section 5(e).

[xii] For example, the last time a constitutional convention was successfully convened was 1885. See Thomas E. David, “The Case for Constitutional Revision in Florida,” 3 U. Miami L. Rev. 225 (1949). Available at: https://repository.law.miami.edu/umlr/vol3/iss2/4     

[xiii] Florida Constitution, Article XI, Section 3.

[xiv] Id.

[xv] Division of Elections, Florida Department of State, 2018 Initiative Petition Handbook.  Available at:  https://www.dos.myflorida.com/media/697659/initiative-petition-handbook-2018-election-cycle-eng.pdf

[xvi] Id.

[xvii] See Enrolled Florida Senate Bill 1794 (2020).  Available at:   https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_s1794er.DOCX&DocumentType=Bill&BillNumber=1794&Session=2020 

[xviii] F.S. § 100.371(2).

[xix] In terms of gathering signatures, there are distinct rules for paid petition circulators.  See F.S. § 100.371.  However, given that pro-life advocates would likely utilize volunteers, for purposes herein it is not necessary to delve into those rules.

[xx] F.S. § 100.371(11)(a); see also Enrolled Florida Senate Bill 1794 (2020), lines 115-118.

[xxi] F.S. § 100.371(11)(a); see also Enrolled Florida Senate Bill 1794 (2020), lines 110-113.

[xxii] See Enrolled Florida Senate Bill 1794 (2020), lines 61-68.

[xxiii] Id.

[xxiv] See again, Florida Constitution, Article XI, Section 3.

[xxv] See F.S. § 101.161.

[xxvi] See Enrolled Florida Senate Bill 1794 (2020), lines 78-79.

[xxvii] Id.

[xxviii] See again, Florida Constitution, Article XI, Section 5(e).

[xxix] Kirby Wilson, “The Florida constitutional amendments on the 2020 ballot, explained.” Tampa Bay Times. September 23, 2020.  Available at:  https://www.tampabay.com/news/florida-politics/2020/09/23/the-florida-constitutional-amendments-on-the-2020-ballot-explained/

[xxx] State v. Barquet, 262 So.2d 431 (Fla. 1972).

[xxxi] See “Florida High Court Voids 103-Year-Old Abortion Law.”  New York Times.  February 15, 1972.  Page 18.  Available at: https://www.nytimes.com/1972/02/15/archives/florida-high-court-voids-103yearold-abortion-law.html

[xxxii] Barquet, supra, at 438.

[xxxiii] See “The Cumulation of the Abortion Reform Movement,” 8 U. Rich. L. Rev. 75, 78-79 (1973). Available at: http://scholarship.richmond.edu/lawreview/vol8/iss1/6; see also, Summary of General Legislation 1972, Report by the Joint Legislative Management Committee of the Florida Legislature, pages 58-59.  Available at: https://fall.law.fsu.edu/collection/FlSumGenLeg/FlSumGenLeg1972.pdf  

[xxxiv] Florida Constitution, Article I, Section 23.  This section was updated via a revision proposed by the Constitution Revision Commission in 1998 so that the pronoun “his” was replaced with “person’s.”

[xxxv] In Re T.W., 551 So.2d 1186, 1191 (Fla. 1989).

[xxxvi] Id. at 1192.

[xxxvii] Florida Constitution, Article X, Section 22.

[xxxviii] Womancare of Orlando, Inc. v. Agwunobi, 448 F.Supp.2d 1293 (N.D. Fla. 2005).

[xxxix] F.S. § 390.0111(3)(a).

[xl] Brendan Farrington, “Fight against Florida abortion waiting period suffers a blow.”  Associated Press.  August 1, 2019.  Available at: https://apnews.com/article/761b15a8a25f47cfb36e036ce345c286

[xli] Lloyd Dunkelberger, “CRC panel rejects plan to narrow privacy rights in Florida constitution.” News Service of Florida.  February 5, 2018.  Available at: https://www.orlandoweekly.com/Blogs/archives/2018/02/05/crc-panel-rejects-plan-to-narrow-privacy-rights-in-florida-constitution

[xlii] Jim Saunders, “Florida Gov. DeSantis signs parental consent for abortion into law.”  News Service of Florida.  June 30, 2020.  Available at: https://www.tallahassee.com/story/news/2020/06/30/florida-gov-desantis-signs-parental-consent-abortion-into-law/3285978001/

[xliii] Id.

[xliv] Id.

[xlv] Id.

[xlvi] Florida Online Campaign Documents search performed on October 12, 2020.  Available at: https://dos.elections.myflorida.com/committees/ComDetail.asp?account=50722

[xlvii] Constitutional Amendment Petition Form.  Serial Number: 13-06.  Approval Date: December 26, 2013.  Available at: http://personhoodfl.com/wp-content/uploads/2010/02/Personhood-consitutional-petition-English.pdf

[xlviii] Initiatives/Amendments/Revisions Database.  Florida Division of Elections.  Available at: https://dos.elections.myflorida.com/initiatives/

[xlix] Florida Online Campaign Finance Activity search performed on October 12, 2020.  Available at: https://dos.elections.myflorida.com/committees/ComDetail.asp?account=50722

[l] Florida Online Campaign Documents search performed on October 12, 2020.  Available at: https://dos.elections.myflorida.com/committees/ComDetail.asp?account=74660

[li] Constitutional Amendment Full Text for Human Life Protection Amendment.  Available at: https://humanlifefl.com/Fulltext_1914_EN.pdf

[lii] Florida Online Campaign Finance Activity search performed on October 12, 2020.  Available at: https://dos.elections.myflorida.com/committees/ComDetail.asp?account=74660

[liii] See again, Enrolled Florida Senate Bill 1794 (2020), lines 78-79.

[liv] Florida Division of Elections Records.  Available at: https://dos.elections.myflorida.com/initiatives/initdetail.asp?account=10&seqnum=59

[lv] Florida Division of Elections Records.  Available at: https://dos.elections.myflorida.com/initiatives/initdetail.asp?account=10&seqnum=63

[lvi] Jason Garcia, “Business groups back ballot measure to undercut future constitutional amendments.”  Orlando Sentinel.  September 24, 2020.  Available at: https://www.orlandosentinel.com/news/os-ne-keep-our-constitution-clean-business-support-20200924-lwzl5vbixral3iwghe3dr7psru-story.html

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