Thread by @ajrichar

LONG 🧵: In the oral argument in the abortion rights initiative case in the Florida Supreme Court, Chief Justice Muñiz made viral comments invoking “fetal personhood.” Some thought this a suggestion that FP could keep the proposed const'l amendment, Amendment 4, from the ballot.

Here is what he said:

() talkingpointsmemo.com/news/florida-c…

The order of my discussion: 1) Muñiz himself, 2) what this version of FP is, 3) the lack of legal recognition of FP, and 4) how this fits into FSC review of ballot initiatives.

1) CHIEF JUSTICE MUÑIZ: Muñiz has the reputation of being a conservative legal operative. () And no doubt he is prolife. ()fedsoc.org/contributors/c…
floridafamilyaction.org/2019/01/govern…

Indeed, in another viral moment last September, Muñiz raised FP in the oral argument in the 15-week-ban case. () floridaphoenix.com/2023/09/08/fl-…

But in my view, Muñiz is also one of the most intellectual justices in recent memory. B/c of SCOTUS, we’re used to sparring, but he seems to approach oral argument as a genuine conversation. He floats stuff, explores things. I saw this in my own argument at the court last year.

To me, this is important context when considering his FP comments. I just don’t view his questions as loaded in the way the same question from a SCOTUS justice’s lips would be.

2) FETAL PERSONHOOD: a) The version of fetal personhood that Muñiz floated is that fetuses are unborn human beings that have the same rights as born human beings under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.

In our case, the relevant constitutional provision, and the one Muñiz referenced, is Article I, Section 2, of the Florida Constitution.

Why do we need to take constitutional FP seriously? Because it is the ultimate goal of the prolife movement and, if the Fourteenth Amendment were held to include it, the legality of abortion would be thrown in serious doubt. ()ballsandstrikes.org/law-politics/f…

The starting point is public meaning originalism. Conservative judges generally believe that the original public meaning of a constitutional text at the time it was adopted controls its interpretation today. ()ir.lawnet.fordham.edu/cgi/viewconten…

b) At least for the U.S. Constitution, the prolife argument is that a fetus was considered a “person” in the eyes of the law in 1868 when the Fourteenth Amendment was adopted.
(,
,
,
)cap-press.com/books/isbn/978…
firstthings.com/article/2021/0…
papers.ssrn.com/sol3/papers.cf…
washingtonpost.com/opinions/2022/…

But this scholarship overstates the case. A respected originalist & anti-Roe law professor, Michael Paulsen, concludes that, at best, the const’l personhood of the fetus is “plausible.”
()papers.ssrn.com/sol3/papers.cf…

I incline toward this view (though not necessarily his view of the legal implications).

c) As for our state constitution’s Article I, Section 2, last adopted in 1968, I’m not aware of any scholarship. (There are also different and difficult issues of constitutional interpretation, but they’re not strictly relevant here.)

3) LACK OF LEGAL RECOGNITION OF FP: What is relevant, and I’ll explain why below, is that FP in the sense meant by the prolife has not been embraced by the courts at the federal or state levels.

a) In Roe v. Wade, SCOTUS rejected FP. Before Roe, however, seemingly the only case prolifers cite as recognizing constitutional FP is a three-judge federal district court opinion from 1970. () scholar.google.com/scholar_case?c…

b) Prominent legal conservatives have rejected FP, however:

- The late justice Antonin Scalia in an interview
() thepublicdiscourse.com/2017/08/19758/

- The late former appellate judge Robert Bork in an essay () firstthings.com/article/2003/0…

- Justice Brett Kavanaugh in his separate opinion in Dobbs
() supremecourt.gov/opinions/21pdf…

c) I am not aware of any Florida case holding that Article I, Section 2, includes FP. Muñiz conceded this absence at the oral argument, and it should be dispositive in deciding whether the proposed constitutional amendment gets on the ballot.

4) INITIATIVE REVIEW: The Supreme Court of Florida must review the validity of initiative petitions under the authority and standards in Article IV, Section 10, and Article XI, Section 3, of the Florida Constitution and §§ 16.061(1) & 101.161(1) of the Florida Statutes.

The basic requirements are that a proposal encompass a single subject and that the ballot title and summary are clear and unambiguous.

Here is the proposal:

a) One thing a proposal must do to satisfy the single subject requirement is identify constitutional provisions that will be substantially affected by the proposal. A4 doesn’t identify AI/S2.

It’s difficult to see how AI/S2 will be substantially affected by Amendment 4 if the provision has never been held to recognize FP.

This same reason resolves the argument that the failure to identify AI/S2 would affect the public’s ability to fully understand the contemplated changes & leave unresolved & open to various interpretations the proposal’s effect on the unnamed AI/S2.

Holding otherwise would impose an intolerable burden on a sponsor to think of and address every possible interpretation, judicially recognized or not, of existing constitutional provisions.

b) The second requirement is that the ballot title and summary state in clear and unambiguous language the chief purpose of Amendment 4.

Any concern about FP falls squarely w/in the warning that it is not necessary to explain every ramification of A4. Again, it’s difficult to see how A4’s ballot title and summary misleads the public when no Florida court apparently has recognized constitutional FP.

c) Recently, the legislature added the requirement, in § 16.061(1), that the court determine “whether the proposed amendment is facially invalid under the United States Constitution.”

As we’ve seen, apparently only one federal district court, pre-Roe, recognized FP. It’s unclear whether SCOTUS would now, and this case isn’t the one for the Florida Supreme Court to.

CONCLUSION: The reaction to Muñiz’s comments was overblown. Fetal personhood does not pose a realistic threat to Amendment 4 getting on the ballot.

The court would have to create new law, in an advisory opinion that isn’t really binding precedent, on an issue that wasn't briefed and on which even the State took no position. Creating new law in a ballot review case, by advisory opinion, wouldn't be well advised.

At least as FP is concerned, the correct holding is that Amendment 4 is not “clearly and conclusively defective.” To find it is because of FP would take the Supreme Court outside of its review authority—which the court has repeatedly emphasized is very narrow.

In short, I just don't see the court recognizing FP in this ballot review case and kicking Amendment 4 off the 2024 ballot.

https://twitter.com/ajrichar/status/1757128058912338303

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