Ashley Moody urges the Florida Supreme Court to consider if “unborn children” are protected by the state constitution’s “Natural Persons Clause”

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Florida Attorney General Ashley Moody
Ashley Moody. By Seán Kinane / WMNF News (3 March 2020).

By Jim Saunders ©2024 The News Service of Florida

TALLAHASSEE — With the Florida Supreme Court deciding whether an abortion-rights constitutional amendment should go on the November ballot, Attorney General Ashley Moody’s office and abortion opponents are urging justices to consider another part of the state Constitution that they say could apply to “unborn children.”

Moody’s office Monday raised the possibility of filing an additional brief about what is described as the “natural persons” provision of the state Constitution. A day later, the group Susan B. Anthony Pro-Life America urged justices to order briefs on an “expedited basis.”

The proposed constitutional amendment seeks to ensure abortion rights, but the Supreme Court would need to sign off on its wording before the issue could go on the ballot. Justices look at issues such as whether the proposed wording would be clear to voters and would not address more than one subject.

The ballot summary of the proposal says, in part: “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.”

The filings this week stem from questions that Chief Justice Carlos Muniz raised during Feb. 7 oral arguments on the proposal. Those questions involved whether the “unborn” are covered by part of the Constitution that says, in part, “All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness.”

In his questions, Muniz appeared to suggest that the court might not be able to decide on the wording of the proposed abortion rights amendment without also looking at whether voters would understand that it could affect the “natural persons” provision of the Constitution.

“If sort of the bare minimum is that people need to be on notice as to what does the Constitution do now and what are you proposing to change, can we evaluate that without taking a position on whether the current Constitution legally, not morally or politically or whatever, but legally, speaks to this issue of any kind of rights for the unborn under this declaration of rights provision?” Muniz said.

Later, Muniz said the proposed constitutional amendment “kind of assumes that the Constitution as it exists right now is silent as to any rights of the unborn. And I don’t know if that assumption is correct.”

During the hearing, state Senior Deputy Solicitor General Nathan Forrester said Moody’s office had not taken a position on the issue. But in the filing Monday, Moody’s office said it “stands ready (to) file a supplemental brief on the important question of how best to understand the Natural Persons Clause as it applies to unborn children.”

“The concern Chief Justice Muñiz expressed was that the proposed abortion amendment could have the effect of dramatically curtailing the scope of the ‘right to enjoy and defend life’—an effect not disclosed in the ballot summary,” Forrester and other lawyers in Moody’s office wrote.

In its filing Tuesday, Susan B. Anthony Pro-Life America said the Supreme Court “should accept the attorney general’s offer of supplemental briefing and order all interested parties to brief these issues on an expedited basis.”

Attorneys for the group Liberty Counsel, which opposes the proposed constitutional amendment, made two filings last month that addressed Muniz’s comments. One of those filings came after a controversial Alabama Supreme Court opinion about embryos created for in-vitro fertilization.

“Directly relevant to Chief Justice Muñiz’s questions, the Alabama Supreme Court noted that an unborn child qualifies as a human life, a human being, and a person,” Liberty Counsel, which is representing the group Florida Voters Against Extremism on the constitutional amendment issue, said in the filing.

As of Wednesday morning, Florida justices had not indicated whether they would order briefs on the issue. The court is supposed to decide by April 1 about whether the proposed constitutional amendment will go before voters in November.

The political committee Floridians Protecting Freedom, which is sponsoring the proposed constitutional amendment, had not made a filing about the possibility of additional briefs.

But during the Feb. 7 arguments, Courtney Brewer, an attorney for Floridians Protecting Freedom, noted the attorney general hadn’t raised the issue in opposing the proposed amendment.

“What you would be asking amendment sponsors to do is to think of all the ways that another provision of the Constitution might be interpreted and to somehow communicate that to the voters,” Brewer said. “I think in that instance, we would really lose the clarity and what the Constitution requires a proposed amendment to say.”

Floridians Protecting Freedom announced the initiative in May after the Republican-controlled Legislature and Gov. Ron DeSantis approved a law that could prevent abortions after six weeks of pregnancy.

The six-week limit is contingent on the outcome of a legal battle about a 15-week abortion limit that DeSantis and lawmakers approved in 2022. If the proposed constitutional amendment reaches the ballot, it would need support from 60 percent of voters to pass.

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