Florida Group Hopes to Use Ruling Calling Embryos ‘Children’ to Derail Abortion Ballot Measure

Last week’s chilling Alabama Supreme Court ruling is already reverberating beyond the state’s borders, and beyond IVF. The Daily Beast reported that a conservative group in Florida has asked the state Supreme Court there to consider the Alabama decision—which classified fertilized embryos intended for IVF as “children”—before it rules on a pending ballot measure that would codify abortion rights.

Floridians Protecting Freedom is behind a campaign to enshrine the right to abortion until fetal viability in the state constitution, a ballot measure known as Amendment 4. (The state currently has a 15-week ban in place, but the state Supreme Court could soon let a 6-week trigger ban take effect.) The group hit the number of required signatures to get the measure on the ballot, but Florida law includes an unusual step, in which the Supreme Court has to determine if language including the ballot summary is clear enough for voters. At a hearing earlier this month, lawyers for state Attorney General Ashley Moody (R) asked the court to throw out Amendment 4 because they claim voters don’t know what “viability” means. 

Overall, the court sounded critical of the state’s arguments. However, Chief Justice Carlos Muñiz invoked fetal personhood and noted that the court hasn’t taken a position on whether the state constitution protects “an unborn child at any stage of pregnancy.” He said the constitution “talks about ‘all natural persons are equal before the law and have unalienable rights’—I don’t know that I could affirmatively say that the term ‘natural person,’ as a matter of just ordinary meaning, doesn’t include the unborn.” The court has until April 1 to issue its decision on Amendment 4.

This brings us back to the frozen embryos case. The Alabama Supreme Court ruled on Friday that couples whose embryos were accidentally destroyed by a medical facility could sue for “wrongful death.” On Monday, a Christian law firm that opposes the Florida ballot measure filed a “notice of supplemental authority” in the pending case—that is, adding a ruling that came out after their brief was filed. 

The lawyers for Liberty Counsel wrote that the Alabama ruling is “directly related to questions raised during the February 7, 2024, oral argument by Chief Justice Carlos G. Muñiz regarding whether the Ballot Summary should apprise voters that the Proposed Amendment may impact Art. I, § 2 of the Florida Constitution respecting an unborn child, including legal rights of an unborn child in law.” They also said “the Alabama Supreme Court held that its constitutional and statutory protection for unborn children was not contingent on viability,” and attached the full Alabama decision as an exhibit.

Liberty Counsel didn’t spell out what exactly steps they want the Florida Supreme Court to take on Amendment 4, but if you read between the lines, they appear to be nudging the court to amend the ballot summary to contain terms like “unborn child.” The summary currently reads:

“No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

Anti-abortion activists pursued a similar tactic in Ohio, where a Republican-controlled state ballot board replaced the words “embryo” and “fetus” with “unborn child”—a move the state Supreme Court upheld—but the measure still passed, by 56 percent to 43 percent. The stakes of anti-abortion interference are higher in Florida, where the threshold for amendment passage is a steeper 60 percent.

We’ll keep you apprised of any Florida fuckery as it happens.