Mother Jones; Dirk Shadd/Tampa Bay Times/Zuma
When the US Supreme Court overturned the federal right to an abortion in its 2022 Dobbs decision, one argument the justices made was that it was not banning abortion across the country, but rather granting states, and their voters, the opportunity to regulate the procedure. Since then, seven states have voted on their local abortion laws through ballot measures. From the liberal paradises of Vermont and California to redder states like Ohio and Kansas, all seven voted to protect abortion. In November, 10 more states are using ballot measures to address the topic, too.
Among them is Florida. Until 2022, the state allowed abortions until the third trimester. But since Dobbs, the state first enacted a ban on abortions after 15- weeks gestation, and subsequently a ban on abortions after six weeks, which took effect in May.
Floridians Protecting Freedom (FPF) is trying to change that with Amendment 4, which the reproductive rights group added to Florida’s November ballots by collecting more than 900,000 signatures. If enough Floridians vote “yes” on the ballot measure (official summary shown below), the referendum will theoretically enshrine in the Florida Constitution the right to abortion access up until fetal viability—which is generally around 23 to 24 weeks. As the referendum states:
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.
More than half of Florida voters support expanding abortion rights, according to polling by both Florida Atlantic University and the Hill/Emerson College. But whether this support ultimately alters the abortion landscape in the state is a different question.
That’s because Republican Gov. Ron DeSantis is using the power of his administration to threaten the initiative. He’s appointed people to the Financial Impact Estimating Conference—a panel responsible for gauging potential costs of ballot measures—that required the amendment be accompanied by language stating, without evidence, that access to abortion may cost taxpayer dollars. State law enforcement has also been sent to question Floridians who signed the petition for Amendment 4 to appear on the ballot. He’s enlisted a state agency to create a misleading website about abortions in Florida. Local news channels playing an advertisement supporting Amendment 4 have also been threatened with prosecution over the alleged violation of Florida’s sanitary nuisance law, which is generally used to combat health risks like the improper disposal of human waste or dead animals. Later, on Oct. 21, the Miami Herald reported that the marching orders to threaten the media outlets with legal action came from top DeSantis deputies.
On Oct. 11, DeSantis further escalated his intimidation campaign when his state department released a 348-page preliminary report alleging FPF may have committed “widespread petition fraud” to reach the 891,000 signature Florida statute requires to advance ballot measures. In a statement, FPF says its campaign has been “run above board and followed state law at every turn.” Further, the state deadline to challenge amendment signatures has already passed.
Anna Hochkammer, the executive director of the Florida Women’s Freedom Coalition, says the administration is “using the resources of the state to suppress the purest form of democracy, which in this case is necessary because an entrenched unrepresentative cabal of elected officials refuses to legislate in accordance with the overwhelming preferences of the citizens…Despite all of that, we are unbowed and unbroken.”
“An entrenched unrepresentative cabal of elected officials refuses to legislate in accordance with the overwhelming preferences of the citizens…Despite all of that, we are unbowed and unbroken.”
But the report could provide basis for a new, albeit insincere, legal argument against the ballot measure—and it seems it already has. On Wednesday, anti-abortion advocates filed a lawsuit citing the state missive, alleging that, “When all fictitious, forged, illegally obtained, or otherwise invalid signatures are removed from consideration, Amendment 4 failed to reach the constitutionally required number of signatures for ballot placement.” Accordingly, the lawsuit against FPF says, “The invalid petitions must be stricken and Amendment 4 removed from the 2024 General Election.”
DeSantis didn’t personally wage the lawsuit, but he did tee it up for the petitioners who did. Such tactics should not be surprising. Other GOP leaders, such as Ohio Secretary of State Frank LaRose and state lawmakers in Missouri, respectively tried to thwart similar initiatives through politically motivated lawsuits, exaggerated cost estimates, disinformation, and more.
As my colleague Ari Berman points out in his recent magazine story, this is particularly concerning because ballot measures are the only method in which majority rule by a plurality of a state’s citizens can supersede the minority rule of increasingly and disproportionately powerful GOP state lawmakers who have re-drawn districts to benefit them staying in power.
In hyper-gerrymandered states like Ohio, the only way to ensure that the will of the majority is followed is to override representative democracy and go directly to the people. This strategy has taken on renewed urgency in response to recent US Supreme Court decisions taking away fundamental rights, from the gutting of the Voting Rights Act to the overturning of Roe v. Wade. These initiatives can garner support across party lines in a way that is otherwise impossible in a highly polarized partisan political climate.
The Supreme Court explicitly noted that the solution to abortion access is not—in the majority’s opinion—protected by the US Constitution. Instead, as Justice Brett Kavanaugh wrote in his concurring opinion, the 2022 Dobbs decision “properly returns the Court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of democratic self-government.”
In other words, the court said, abortion is an issue that should be regulated through voting: either for political candidates whose reproductive rights views align with those of the voters or, even more directly, for ballot measures.
This is also—in theory—the party line of the GOP. In his presidential campaign, former President Donald Trump has emphasized this point. “It’s all about the states, it’s about state rights. States’ rights,” Trump told Time magazine in April. “States are going to make their own determinations.”
Even without DeSantis putting his thumb on the scale, Florida already had a high bar for passing referenda: As of 2006, 60 percent of voters are required to amend the state’s constitution. Among conservative-leaning states—Kansas, Kentucky, Ohio—that have voted on abortion ballot measures, none have had to hit that high a mark. (Kansas was closest, at 59 percent).
Organizers of Amendment 4 say they believe Florida could be the first state to do so, but it’s a harder task when the DeSantis administration is engaging in what Hochkammer calls “asshole politics,” which values “power and posturing over good policy.”
For example, both the proponents and opponents of Amendment 4 have television advertisements in Florida. A pro-Amendment 4 ad depicts a woman describing how a pre-ban abortion saved her life when she found out she had a brain tumor while also pregnant with her second child. “The doctors knew that if I did not end my pregnancy, I would lose my baby. I would lose my life. And my daughter would lose her mom,” the mom says in the 30-second clip. “Florida has now banned abortion even in cases like mine.”
Florida’s Department of Health alleged the advertisement was false in cease-and-desist letters, citing Florida’s “exception” to save the life of a mother. But many physicians, who risk fines and prison time, argue that life-or-death scenarios are extremely complicated and often do not conform to the vague language of abortion-ban exceptions. According to the Herald, the health department’s top counsel, John Wilson, resigned after sending the letters, which had been pre-written by a DeSantis lawyer. In an Oct. 17 affidavit, Wilson said he left the job in “lieu of complying with directives” from DeSantis deputies to “send out further correspondence to the media outlets.”
“A man is nothing without his conscience,” Wilson wrote in his resignation letter, obtained by the Herald.
In the case of the woman who had a brain tumor, her diagnosis was terminal. According to a lawsuit filed in federal court by Floridians Protecting Freedom on Wednesday, the woman would not have met the requirements for an exception because an abortion only would have “extend[ed]” her life, not saved it. There are post-ban examples, too.
In another case, a 15-week pregnant woman was leaking amniotic fluid for an hour in a Broward County, Florida, hospital waiting room. Her ultrasound showed she had no amniotic fluid around her fetus, a condition that can quickly lead to serious infection and death. She was discharged and miscarried in a public restroom later that day, at which point was rushed to another hospital and put on a ventilator. She stayed in the hospital for six days.
“When you don’t want to talk about the fact that your state has an abortion ban that’s forced rape survivors to go out of state for care, that’s led to women almost losing their lives,” FPF campaign director Lauren Brenzel recently told Mother Jones, “you create distractions because you don’t want to talk about the harmful policy that you’ve implemented.” She added, “It’s not shocking. It’s the national playbook.”
