Florida voters on Tuesday did not pass an amendment to enshrine abortion rights into their state constitution, making the state the first to uphold existing anti-abortion laws in a referendum since the Supreme Court overturned Roe v. Wade in 2022.

Amendment 4, prohibiting the state from restricting abortion before fetal viability, fell just short of the 60% threshold needed to pass. The vote in favor led by 53% to 47% when the Associated Press called the race after 9 p.m. eastern time with about 91% of the ballot counted in the Sunshine State. 

The amendment would have undone the state’s Heartbeat Protection Act, which prohibits abortion after six weeks of pregnancy, when fetal cardiac activity can be detected on ultrasound.

The passage of the amendment would have meant that Florida would have been the only Gulf Coast state and in the southeast to allow abortion past 15 weeks gestation.

Abortion policy in Florida became an intense battle this election season after the heartbeat bill withstood constitutional challenges this spring and was upheld by the state Supreme Court. 

“When voters know the truth about dangerous and far-reaching abortion amendments appearing on their ballots, they reject them wholeheartedly,” March for Life President Jeanne Mancini said in a statement.

The amendment would have protected abortion access without state restrictions until fetal viability, or when the fetus can survive outside of the mother’s womb. Although this is determined by medical professionals on a case-by-case basis, a fetus is typically viable between 22 and 24 weeks of pregnancy. 

Abortion would have been allowed later in pregnancy as well for the health of the mother, as determined by the treating medical professional. 

Anti-abortion advocates criticized the health exception in the amendment as too vague, allowing abortion providers too broad of a brush by which to justify the procedure. 

Opponents of Amendment 4 also argued that the measure would have eliminated parental consent rules for abortion procedures performed on minors. The amendment has a provision allowing for parental notification, which, unlike consent, would not have to be given before the procedure could take place.

Splinter in the Republican Party

The divide among Florida Republicans on Amendment 4 was emblematic of the nationwide struggles of the GOP on abortion this election season. 

Republican Gov. Ron Desantis, who signed the heartbeat bill into law, personally campaigned heavily against Amendment 4, appearing numerous times with anti-abortion activists and doctors in the state to persuade voters to oppose the measure. 

The DeSantis administration’s Department of Health also lobbied heavily against Amendment 4, saying that the six-week limitation did not prevent doctors from acting in medical emergencies from saving the woman’s life, which is a common refrain of abortion rights supporters. 

Those medical emergencies include miscarriage care, ectopic pregnancy treatment, and abortion pill complications. 

Former President Donald Trump, a Florida resident, opposed the heartbeat bill, saying that “six weeks is too short” and calling the anti-abortion law a “mistake.” 

But, Trump clarified his remarks in August and said publicly he would vote “no” on the amendment, saying that Amendment 4 if passed would allow for abortion in the third trimester, which he staunchly opposes. 

“I disagreed with that right from the early primaries,” Trump said of the heartbeat law in an August interview. “At the same time, the Democrats are radical because nine months is just a ridiculous situation, where you can do an abortion in the ninth month.” 

Trump called abortion in the later months of pregnancy “unacceptable” and said he would “be voting no for that reason.”

Legal issues for Amendment 4

In October, a federal judge ordered the DeSantis administration to stop threatening television stations with criminal charges for airing political ads supporting Amendment 4 that claimed doctors could not treat such pregnancy emergencies under existing anti-abortion statutes.

Jude Mark Walker, appointed to the Federal District Court in Tallahassee by former President Barack Obama, ruled that the administration was abridging freedom of speech and not preventing medical misinformation as the DeSantis administration argued. 

Even if Amendment 4 had passed, the results of the election could have been overturned if a lawsuit filed by anti-abortion activists had been successful challenging against the signature collection process from the committee supporting the amendment, Floridians Protecting Freedom. 

The Florida Department of State Office of Election Crimes and Security published an interim report last month alleging that FPF violated state law and engaged in fraud to collect signatures for the ballot measure. Anti-abortion activists in mid-October used the report as the basis of their statewide lawsuit. 

Other abortion amendments

Since the Dobbs v. Jackson Women’s Health Organization decision that overturned federal protections for abortion, abortion rights amendments have passed in every state that had them on the ballot in 2022 and 2023. 

In addition to Florida, nine other states have abortion rights measures on the ballot that are still yet to be called. 

Four of those states (Arizona, Missouri, Nebraska, and South Dakota) are among the nearly half of states that have implemented gestational age restrictions on abortion since the fall of Roe. 

Voters in five other states (Colorado, Maryland, Montana, Nevada, and New York) that currently have legislative protections on abortion are weighing whether or not to enshrine the right to abortion into their state constitution.