(Revised Version 1-17-2023)
By John Stemberger
President, Florida Family Policy Council
There is currently a pro-life citizen initiative petition drive registered in Florida to attempt to amend the state constitution. Previously, when we released our original statement, there were three separate proposals, but since that time, two have become inactive, and now there is only one.
The problem we are all trying to solve in Florida as pro-lifers is that we have our own state version of Roe vs. Wade. This bad case, decided by the Florida Supreme Court in 1989, is called “In Re TW, A Minor.” This case, decided by a left-leaning activist court, created a state right to abortion using a good informational privacy clause in our state constitution (adopted by Floridians in 1980). Our current strategy, agreed upon by the leading state and national pro-life leaders and pro-life lawyers, is to get rid of this bad case the same way we got rid of Roe vs. Wade with the Dobbs case. Bad judges created the abortion right in Florida, and now we believe good judges in Florida will reverse and overturn it.
A 2022 law protecting unborn children from abortion after 15 weeks of pregnancy passed by the Florida Legislature and signed into law by Governor DeSantis is currently on appeal to the Florida Supreme Court. Florida’s Supreme Court is now widely considered one of the country’s most conservative and textualist state courts, and most of the justices are personally pro-life. It will take a while for the case to work its way to be correctly positioned, but the Florida high court will eventually hear and review the 15-week law. Even liberal commentators expect the court to overturn Florida’s abortion “right” eventually. Our thirty-three years of work in Florida have paid off with winning elections and getting great judicial appointments, and we are now set to see a similar reversal of Florida’s Roe vs. Wade.
It is critical to understand that the text of our constitution is not the problem. Instead, the problem lies with the liberal activist judges on the court in 1989 that clearly misinterpreted it. Therefore, we do not need to amend our state Constitution to “fix” our constitution because there is no abortion right in it.
That is one of the main reasons we do not support petition-based attempts to amend our state constitution on life issues. There are at least five other reasons we do not support these efforts:
1) We should learn from the failure of five other states’ amendments on this issue. The state of Kansas tried to pass a pro-life amendment in August of 2022, and the effort failed miserably. The pro-life side spent over $10 million on the initiative. In November of 2022, even a conservative state like Kentucky tried to pass a pro-life amendment but also failed. Additionally, three other bad pro-abortion rights amendments in California, Michigan, and Vermont all passed in 2022! When pro-life amendments like this fail, it gives perfect cover for weak politicians to hide behind the results and say, “The people have spoken, and we should not try to pass any more pro-life laws.” Kansas and Kentucky pro-lifers will now spend decades trying to dig themselves out of the hole they created by trying and failing to pass a pro-life state constitutional amendment. Leading state and national pro-life organizations hope that Florida and other states do not make the same mistakes as Kansas and Kentucky.
2) Very difficult to get on the ballot and even more difficult to pass. Florida is one of the few states to require a 60 percent passage rate for a state constitutional amendment. It is an extremely high bar. But before you can get a Florida amendment on the ballot, you must collect almost a million voters’ signatures in support of the language. After the sponsoring group collects the first ten percent of petitions needed, the Florida Supreme Court conducts a single subject review. If the court finds the language deals with more than one subject and or is misleading, the language will not be approved. The petition is then struck down, and the campaign is over. None of the recent pro-life petition campaigns have ever collected the ten percent needed to get a Supreme Court review, even though some of these petition efforts have been around for several years.
3) The amendment sponsor does not have the finances, networks, or grassroots support to win. Passing a state constitutional amendment by a citizen initiative is extremely difficult and requires millions of dollars. I know, as I am one of the few persons in Florida that have ever done it, with the marriage amendment campaign from 2005-2008. Even with the full support of Florida Baptists, Catholics, many other church denominations, and every pro-family group in the country, we still did not make the first deadline for signatures after two years of unified hard work. Under a recent law, the signatures don’t carry over after two years. Without a major donor gift that was totally unexpected, in 2008, we would have never even finished collecting a million marriage petitions by the deadline. The current amendment efforts do not have the finances or support from major pro-life groups or church denominations to get their amendment on the ballot much less pass it at the ballot box.
4) We must focus all our efforts on defeating the pro-abortion amendment that will likely be on the Florida ballot in 2024. I predict that in 2024 it is very possible we will see a George Soros-like group mount a serious and well-funded campaign to amend the constitution to pass an abortion rights amendment creating an express right to abortion in the state constitution since one does not exist now. We will need every bit of time, energy, focus, and financial resources to defeat this amendment and elect a pro-life President in 2024. We cannot be distracted, diluted, and confused by two amendments, one we are for and one we are against.
5) With so many worthy battles to fight, we do not want to dilute our time, effort, and energy on matters that are unlikely to succeed. When we mount a campaign, we do it to win. And we never go alone. We always move together collaboratively and build a large consensus with other state and national organizations. We also choose our battles carefully to ensure we are not engaging in efforts out of our reach or merely symbolic that will not be effective. We want our supporters to invest their time and money in actions that will both succeed and make a difference. Sadly, the current petition campaign will do neither.
One final note. The people behind these petition efforts are very committed to the cause of life and are very sincere. They are good people of high moral character. But we disagree with their strategy at present. A state constitutional amendment is a strategy of the last resort. If Florida’s Supreme Court, now the most conservative appellate court in the country, refuses to overturn this bad abortion precedent, then we will have no other option at that point than to begin to plan a constitutional amendment campaign. Again, however, this should be a last resort. I hope this statement clarifies why we do not support this petition campaign at the current time. We sincerely appreciate your commitment to the cause of life and thank you for considering these thoughts.