If Florida votes for abortion, marijuana, will lawmakers abide?

TALLAHASSEE — Supporters of a Florida amendment that would protect abortion access have already passed several hurdles, including getting nearly 1 million petitions and a signoff from the state’s conservative Supreme Court.

But getting 60% of Florida voters to approve the amendment in November will likely still not be the last challenge.

Florida’s lawmakers have a history of watering down amendments they don’t support. And with Gov. Ron DeSantis and top Florida lawmakers in opposition to the abortion measure, it’s not out of the question that the Legislature might try.

And it’s not the only amendment Florida lawmakers disapprove of; Florida voters in November will also decide if they want recreational marijuana legalized, which DeSantis and others have opposed.

“(Lawmakers) actually have this really sophisticated set of countermeasures for how to respond to initiatives that they don’t like,” said Jonathan Marshfield, a professor of state constitutional law at the University of Florida’s law school.

Outside advocacy groups that oppose the amendments could also file court challenges that target how the amendments are carried out, which could bring the cases back in front of the state Supreme Court.

Anti-abortion groups like Susan B. Anthony Pro-Life America and Florida Voters Against Extremism have dismissed questions about whether they are preparing legal challenges, saying they think voters will swat the abortion amendment down.

Supporters of the amendment say they are ready to “ensure that legislators do the right thing in respecting the will of Florida voters when implementing this initiative,” said Lauren Brenzel, campaign director for the group pushing the measure.

And the group backing the marijuana amendment has also said it will work to ensure that, if it passes, lawmakers put forward properly enacted regulations on how and where marijuana is consumed.

What’s happened in the past?

Even if an amendment is approved, lawmakers can pass legislation to enact it in ways that voters, or groups that pushed to get it on the ballot, didn’t anticipate. There are examples of legislators doing just that.

In 2002, when voters were considering an amendment to limit school class size, then-Gov. Jeb Bush was recorded saying he had “devious plans” to undo it if it passed, including a voter campaign that would detail how taxes would increase and which programs would be cut to fund it.

(In the more than two decades since that amendment passed, the Legislature has exempted hundreds of courses from the class-size caps and created loopholes that allow schools to have more students per classroom.)

In 2017, after 71% of Florida voters approved medical marijuana use, then-Gov. Rick Scott signed a bill that prohibited smokable weed. Supporters challenged it in court, saying lawmakers defied the will of Florida voters. A circuit judge deemed the ban unconstitutional and it has since been removed.

The courts are also weighing whether lawmakers failed to “realize the promise” of Amendment 4, which passed in 2018. After the election, lawmakers required people with felony records to pay off all court fines and fees before voting, but the state never set up a centralized system for people to figure out how much they owe.

Lawmakers can also use the budget to affect amendments. Voters in 2000 OK’d an amendment supporting high-speed rail. Years later, Scott pulled the $2.4 billion in federal funding for the project.

One common option for lawmakers, Marshfield said, is to look at the text of an amendment, find ambiguity, and pass legislation that implements it but also adds definitions and additional context that can weigh it down.

Florida lawmakers are expected to reconvene in March next year, giving them time to pass laws if voters approve this year’s amendment for recreational marijuana. That amendment would go into effect six months after voter approval. (The abortion amendment, if passed, would take effect in January, before lawmakers are back in regular session — but DeSantis could always call for a special session.)

Lawmakers may try to institute THC caps for recreational marijuana, which they attempted this past session but failed to get across the finish line, or they could try creating smoke-free zones.

Steve Vancore, a spokesperson for the amendment sponsor group Smart & Safe Florida, said the group supports efforts to limit consumption of marijuana in public.

“The amendment is clear and the constitution is clear that the legislature will have that power,” he said.

The court’s role over abortion and “personhood”

The future of Florida’s abortion laws could also end up back in the courts.

Even while Florida Supreme Court justices voted 4-3 to put the amendment on the ballot, they laid out a possible path for challenges by raising the idea of fetuses’ legal rights. The concept focuses on whether fetuses should have the same rights and constitutional protections as anyone.

In a dissent against allowing the amendment on the ballot, Justice Jamie Grosshans wrote that the amendment does not settle the abortion issue.

“Instead, this amendment returns abortion issues back to the courts to interpret scope, boundary, definitions, and policy,” she said.

Chief Justice Carlos Muñiz raised the idea of fetuses’ rights under the Florida Constitution during oral arguments over the abortion amendment.

Muñiz later brought the concept up again in a concurring opinion that accompanied the ruling allowing the amendment on the ballot. Justices Charles Canady and John Couriel signed onto the concurring opinion, which said the amendment would restrict people from using the law to “protect an entire class of human beings from private harm.”

Grosshans, in her dissent, also argued that the amendment would likely impact the constitutional right to life.

Justice Meredith Sasso concurred. And Justice Renatha Francis, in her own dissent, said abortion infringes on “the right of another person.”

But John Stemberger, the president of Liberty Counsel Action, said he believes that if the amendment becomes part of the Florida Constitution, the court’s hands may be tied even if conservative groups raise lawsuits.

Stemberger’s group is working to keep the amendment from getting approved by voters, saying that if it passes, it will be difficult to argue against it after the fact, even though justices seem to show interest in exploring fetuses’ rights.

“I think it would be a very, very difficult argument to make after it’s passed already,” Stemberger said.

Michelle Morton, policy counsel for the American Civil Liberties Union of Florida, agreed with Stemberger that if the amendment is adopted into Florida’s Constitution, the argument for more rights for fetuses will be a tougher sell because the newer provision would override older parts of Florida’s Constitution, even if it had a new interpretation.

“We’ve been in this fight,” she said. “We’re going to stay in this fight. We’re ready.”