The U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization in June 2022 ended federal abortion rights. (Photo by Sofia Resnick/States Newsroom)
“We should live not by lies; the truth will set us free.” — Gov. Ron DeSantis
The contentious battle over Amendment 4 — and what it would do if passed by voters — has been shrouded by half-truths and misdirection by its most strident critic, Gov. Ron DeSantis, but arguably also by those pushing the initiative.
DeSantis has been crisscrossing the state with state agency chiefs and physicians opposed to the amendment, contending that proponents of the measure are subjecting Floridians to a “blizzard of lies.”
Floridians Protecting Freedom and supporters of the measure have pointed fingers back at the governor, contending he is distorting the amendment and using the power of the state to do so.
Here’s a look at some of the rhetoric being tossed around in the increasingly bitter battle over Amendment 4 and abortion access in Florida.
No interference
Specifically, Amendment 4 would ban the Legislature from passing any law that prohibits, penalizes, delays, or restricts abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s “healthcare provider.” DeSantis argues using the term “healthcare provider” would allow abortions to be performed by someone who is not a physician.
DeSantis argues the amendment does not define key terms such as viability, healthcare provider, or patients’ health.
Ten states have abortion access on the ballot via 11 different amendments, because Nebraska voters will decide between two varying approaches to abortion regulation and access, a KFF website shows.
For instance, the Colorado abortion amendment would repeal an amendment voters adopted in 1984 that had the effect of denying insurance coverage for abortion care for public workers and Medicaid beneficiaries. The amendment on the ballot now would recognize the right to abortion and make clear that “government shall not deny impede or discriminate against the exercise of that right including prohibiting health insurance coverage for abortion.”
In South Dakota, the abortion debate is around “trimesters.” The amendment there would ban government interference in the first trimester and allow the state to regulate abortion subsequently only in ways reasonably related to the physical health of the pregnant patient.
One of Nebraska’s amendments would ban abortions in the second and third trimesters, except in medical emergencies or when the pregnancy is a result of rape or incest, to protect “unborn children. The other amendment establishes a right to an abortion until viability, which is defined.
And in New York, voters are being asked to approve a swath of anti-discrimination protections including for pregnancy, pregnancy outcomes, and reproductive health care and autonomy. That amendment doesn’t address viability.
Six proposed amendments, including Florida’s, do frame access around viability of the fetus. Of those, Amendment 4 in Florida is the only one that doesn’t define “viability.” However, a Florida statute defines viability as “the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.”
Cuts out the doctor
Under existing Florida law, a patient has to have two face-to-face meetings with a Florida licensed physician to qualify for an abortion.
Amendment 4 uses the term “healthcare” professional, which prompted DeSantis to argue, “You will have non-medical doctors doing this. … “I don’t know if there’s any other state that has ever gone down that road.”
Several states have changed their abortion laws to expand the types of providers who can render the care since the Dobbs decision.
According to a 2022 analysis of state policy conducted by Connecticut’s Office of Legislative Research, clinicians, such as advanced registered nurses, nurse-midwives, or physician assistants, may perform medication or procedural abortions there. Sixteen states allow advanced practice clinicians to perform both medication and procedural abortions, and three states allow specified non-physicians to perform only medication abortions.
Seven of the 11 abortion-related amendments reference the providers who may perform abortions. Of those, only South Dakota requires that abortions be performed by physicians.
That South Dakota amendment would preclude government interference with abortion in the first trimester and allow regulation in the second trimester only in ways reasonably related to the physical health of the pregnant patient. Third-trimester abortions would be prohibited unless is necessary, “in the medical judgment of the woman’s physician, to preserve the life or health of the pregnant woman.”
Legislature still in control
Nova Southeastern University law school professor Robert Jarvis told the Florida Phoenix he supports abortion rights but agrees with the governor that the language is vague.
“This is a black box. You have no idea what you’re voting for, “Jarvis said. “This is so vague it means whatever the voter wants it to mean.”
Indeed, Jarvis expressed surprise that the Florida Supreme Court allowed the language on the ballot given its lack of clarity. “This makes the average voter have to guess,” he said.
It also would force the Florida Legislature define its terms even though DeSantis has suggested it would tie lawmakers’ hands.
That contention runs contrary to legislative history.
In 2018, more than 64% of voters approved an amendment to restore voting rights to all but the most serious felons who have completed all terms of their sentences including parole or probation. (By coincidence, that also was labeled Amendment 4.) To limit the reach of the amendment, the Legislature passed, and DeSantis signed into law, a bill (SB 7066) that requires former felons to pay court-imposed financial obligations such as fines, fees, and restitution before having their voting rights restored.
The legislation prevailed when challenged in federal court. And, indeed, in its majority opinion approving the abortion amendment for the ballot, the Florida Supreme Court underscored the continued influence the Legislature will exercise over abortion policy.
The court opined, “[T]he proposed amendment would not prohibit the Legislature from passing laws ‘interfering’ with abortion after the point of viability and when the mother’s health is not in jeopardy. The ballot title’s inclusion of the word ‘limit’ is therefore not misleading but accurately explains that the Legislature will retain authority to ‘interfere with’ abortions under certain circumstances.”
DeSantis has alleged that the sponsor is trying to mislead voters but, during oral arguments over the amendment, Chief Justice Carlos Muñiz wrote: “It just doesn’t seem like this [language] is trying to be deceptive.” Additionally, “The people of Florida aren’t stupid. I mean, they can figure this out.”
Not only would the Legislature retain control, but it can and has designed its own definitions, sometimes departing from generally accepted medical principles. For example, in 2016 the Republican-led Legislature agreed to a bill that changed the definition of pregnancy trimesters.
Pregnancy is often grouped into three trimesters. The American College of Obstetricians and Gynecologists defines the first trimester from the first day of the last missed period to 13 weeks and six days; the second trimester as 14 weeks to 27 weeks and six days; and the third as 28 weeks to 40 weeks and six days.
By contrast, Florida law defines the first trimester as beginning at fertilization through the end of the 11th week of gestation. The second trimester is 12 weeks through the 23rd week of gestation, and the third trimester runs from the beginning of the 24th week of gestation through birth.
The definitions are important because Florida law regulates abortion clinics based on whether the procedures are performed during the first or second trimester.
“It’s always very confusing and detrimental to good patient care to have regulations or statutes that conflict with generally accepted good medical practice,” said Allen Grossman, an attorney who practices administrative and regulatory law and has represented a wide array of health care professionals before the state’s licensing boards.
The Legislature theoretically could crack open definitions such as viability and make them more restrictive, Grossman said. “I wouldn’t be surprised,” he added.
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Existing situation
Florida law bans abortions after six weeks’ gestation for most pregnancies.
Before undergoing an abortion, a patient must have two physician visits, a sonogram, and wait 24 hours. Minors must notify and receive permission from a parent. The law allows minors to bypass parental consent if they can persuade a circuit judge they are sufficiently mature to decide for themselves — although judges sometimes refuse permission.
There were 170 petitions filed in circuit court in 2023 to bypass those requirements. About 91% of the time the petitions were granted, court documents show. The 16 petitions that were dismissed were filed in a spate of county courts: Leon, Marion, Polk, Miam-Dade, Hillsborough, Calhoun, Seminole, and Collier.
There are exceptions to the six-week ban. Abortions are allowed past that point to save the patient’s life or avert a serious, substantial, and irreversible physical impairment of bodily function (other than psychological). Abortions are allowed past six weeks for fetal anomalies and in cases of rape, incest, or human trafficking.
There are caveats for all those exceptions.
Two physicians must certify in writing that the termination is necessary to avert death or permanent injury (or one physician in an emergency situation). Abortions for fetal abnormalities require written certifications from two physicians.
And the exception for rape, incest, or human trafficking requires copies of restraining orders, police reports, medical records, or other court documents supporting the claims. But not all people report rape. The Rape, Abuse & Incest National Network says that 2 out of every 3 sexual assaults go unreported.
Florida’s law contains no exception for the mental health of the mother — even though mental health conditions accounted for more than 20% of pregnancy-related deaths as of 2020. The Centers for Disease Control report includes data from 38 states, including Florida. Pregnancy-related deaths are those that occur during pregnancy, delivery, and up to 1 year postpartum.
Ad campaign
DeSantis’s anti-amendment rhetoric comes as the state tussles in court with the political committee sponsoring Amendment 4 and its “Caroline” ad and whether the group mischaracterized the six-week abortion ban in its ad.
“The doctors knew if I did not end my pregnancy I would lose my baby, I would lose my life, and my daughter would lose her mom. Florida has now banned abortion even in cases like mine. Amendment 4 is going to protect women like me. We have to vote yes,’’ she says in the ad.
Following the ad’s release, the Department of Health sent letters to television stations airing it and suggested they could be subject to criminal penalties if they kept them up.
In response, Floridians Protecting Freedom took DOH Secretary and State Surgeon General Joseph Ladapo to federal court, arguing the health department’s cease-and-desist letters to television stations violated its First Amendment rights. U.S. District Judge Mark Walker granted a temporary restraining order preventing the state from taking action against the stations.
The DOH maintains that the ad isn’t truthful.
“The fact is these ads are unequivocally false and detrimental to public health in Florida,” wrote James Williams, the department’s communications director, in an email to Florida Phoenix. “The media continues to ignore the truth that Florida’s heartbeat protection law always protects the life of a mother and includes exceptions for victims of rape, incest, and human trafficking.”
“Caroline” is one of many political ads in support of the amendment. The first ad, “Before,” aired during the presidential debate between Vice President Kamala Harris and former President Donald Trump.
The ad says Florida’s law is “an extreme ban with no real exceptions. Not for her health. Not even for rape.”
Politifact, a fact-checking website, deemed the ad “mostly false” for claiming that the six-week ban has “no real exceptions.”
Barriers exist
A Kaiser Family Foundation (KFF) review of exceptions in state abortion bans found that in practice health and life exceptions “have often proven to be unworkable, except in the most extreme circumstances, and have sometimes prevented physicians from practicing evidence-based medicine.”
Another report released by Physicians for Human Rights suggests doctors are afraid that performing an abortion can wreck their careers. That’s because if they’re found to have violated the law they can be charged with a third-degree felony punishable by up to five years in prison, a $5,000 fine, and loss of licensure.
That latter report included interviews with 25 OB-GYNs, abortion providers, genetic counselors, and other health care professionals who recounted specific instances when they had to navigate the legal minefields in the state’s abortion law.
DeSantis played down those concerns, saying patients denied life-saving health care should sue their physicians for medical malpractice. “You should lose your medical license, quite frankly. If you don’t know the law, you’re not fit to be practicing medicine in this state,” he said.
License on the line
His comments represent more than an idle threat.
The DOH is recommending that the Board of Medicine revoke the license of Dr. Candace Cooley, who violated the state’s 24-hour waiting period while working at the Center of Orlando for Women.
The waiting period was initially passed in 2015 but due to years of legal wrangling didn’t take effect until April 25, 2022.
Clinic management called health care regulators 14 times asking about the effective date of the waiting period but never got an answer. According to the administrative case against Cooley, officials told the clinic in May to stop calling and check a state website for the information.
Not even an aspirin
DeSantis has also said: “Right now in Florida we have parental consent not just for abortion but for anything involving medical with a minor. They can’t give your kid an aspirin unless you consent and that is the way it should be for parents.”
But that’s not true.
The Florida Legislature passed — and DeSantis signed into law — a bill (HB 817) in 2021 that allows physicians in Florida to provide emergency medical care or treatment to a minor without parental consent when a child has been injured in an accident or is suffering from an acute illness, disease, or condition and delaying treatment would endanger the health or physical well-being of the minor.
The care can be administered in a hospital or college health service setting. Additionally, state law allows emergency medical personnel and paramedics to provide emergency care or treatment in an ambulance or at roadside without parental consent.
‘Repeal a right
DeSantis also has claimed that if passed Amendment 4 “would be the first amendment actually in the history of the state of Florida to actually repeal a right.” Specifically, to parental consent before a child undergoes an abortion.
There are several examples of amendments approved by Florida voters one could argue repealed rights.
For instance, more than 69% of voters in 2018 approved an amendment that ended greyhound racing in the state. In 1994, nearly 72% of voters approved a constitutional amendment that banned net fishing in Florida waters. In 2002, 71% of voters approved an amendment that banned smoking in workplaces, such as bars and restaurants.
Other amendments didn’t exactly eliminate rights but did restrict them. In 1988, 71% of voters authorized a three-day waiting period for handgun purchases and, in 2004, nearly 65% of voters approved an amendment that required minors to notify their parents about their abortions (which Amendment 4 would not repeal).
Agreement on litigation
There is something both sides of the Amendment 4 debate agree on: This is not the end of the debate and there will be plenty of litigation.
“Right now, people are writing the very lawsuits that will be filed,” Jarvis said.
Some have already been filed.
Four anti-abortion advocates have asked a state trial court to remove Amendment 4 from the ballot or to nullify votes cast in its favor. They cite a preliminary report from the Florida Department of State accusing Floridians Protecting Freedom of “widespread election fraud.”
The complaint has been amended to add DeSantis, Attorney General Ashley Moody, and Chief Financial Officer Jimmy Patronis based on their roles as members of the state Elections Canvassing Commission.
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