GOP Attorney General Moody on abortion-rights initiative: A ‘misleading’ bid to ‘hoodwink’ voters

She also suggests the justices be less forgiving when vetting initiatives

By: - November 1, 2023 6:09 pm

Florida Attorney Ashley Moody. Source: Screenshot/Florida Channel

Republican Attorney General Ashley Moody notified the Florida Supreme Court weeks ago that she planned to ask the justices to block a proposed Florida Constitutional amendment protecting abortion. Now she’s filed formal arguments blasting the measure as “misleading” and an attempt to “hoodwink” the voters into kneecapping the court’s authority.

“The ballot summary here is part of a similar overall design to lay ticking time bombs that will enable abortion proponents later to argue that the amendment has a much broader meaning than voters would ever have thought,” Moody asserts in a brief filed with the court this week.

Her arguments come as hundreds of thousands of petitioners push for a citizen-led ballot initiative to protect abortion rights in Florida, in part because the Legislature has already passed abortion bans and the Florida Supreme Court seems inclined to uphold those bans, based on recent oral arguments.

Moody, the state’s top law enforcement officer, has been openly against the initiative, and she asked the court to bar the proposed amendment, aimed at the 2024 General Election ballot, establishing an unambiguous right to abortion under the Florida Constitution.

“It hides behind an uninformative parroting of the text of the amendment to veil from voters its potentially expansive scope. The ballot summary thus contravenes one of the important prerequisites for an amendment initiative to go on the ballot: that the ballot summary explains to voters ‘the chief purpose of the measure’ in ‘clear and unambiguous language.'”

Moreover, the amendment’s sponsors “have proposed an amendment to the Florida Constitution using a misleading ballot summary to trick voters into freezing in place a legal framework that conceals the amendment’s potentially sweeping legal effects, thereby mooting the outcome of the Planned Parenthood appeal to this court.”

Planned Parenthood clinics are among the named plaintiffs in a pending Florida Supreme Court challenge to the 15-week abortion ban in the Legislature adopted in 2022. This year’s six-week ban was written to become law if the court upholds the 15-week ban.

Floridians Protecting Freedom is the group behind the initiative, which would counter the U.S. Supreme Court ruling reversing Roe v. Wade and other national precedents establishing a privacy right to abortion (at least in Florida). Should the Florida Supreme Court overturn its own 1989 precedent finding a privacy right to the procedure in the Florida Constitution (by upholding Florida’s 15-week abortion ban), it would counter that too. The court has heard oral arguments on the validity of that precedent but has yet to rule.

But first the measure needs to be cleared for the ballot by the same court that’s widely expected to discard those decades of protections for abortion rights in Florida. The court is supposed to ensure the explanation of the initiative accurately reflects what it would do. Also, a panel of state economists is working on an economic-impact statement to be presented to voters.

Several other briefs

It was one of five briefs filed Tuesday by parties opposing the proposed “Amendment to Limit Government Interference with Abortion.”

Also filing briefs opposing the amendment were the National Center for Life and Liberty, Susan B. Anthony Pro-Life America, Florida Conference of Catholic Bishops, and Florida Voters Against Extremism. That last group says in its brief that it organized expressly to oppose the abortion amendment.

“Proposed Amendment hides from voters its sponsors’ true purpose: to codify unrestricted abortion as a fundamental right in Florida’s Constitution and allow abortions for virtually any reason, at any stage of the pregnancy,” the bishops’ brief reads.

The bishops argue that the ballot summary hides from “the voter that the Proposed Amendment effectively prohibits all government regulation pre-viability” and “fails to inform voters that the Proposed Amendment would leave pre-viability abortion providers completely or largely unregulated.”

Supporters of the proposal have until Nov. 10 to file their arguments.

What the amendment says

The text of the amendment says: “Limiting government interference with abortion.— Except as provided in Article X, Section 22, 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 cited provision allows the Legislature to require parental notification before a minor undergoes an abortion with the option of allowing the child to ask a judge for permission instead.)

The summary reads: “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.”

That, Moody argues, represents an attempt to “hoodwink” the voters.

Define ‘viability’

Moody’s brief alleges intentional ambiguity involving the definition of “viability” as ability by a baby to live outside the womb (as understood in decades of legal precedent) with what she calls “the more traditional clinical sense — as referring to a pregnancy that, but for an abortion or other misfortune, will result in the child’s live birth.” The former can happen later than the latter, which Moody claims could confuse voters.

She quibbles about the measure’s definitions of “patient’s health” (does that include mental health?) and “healthcare provider,” which she suggests could include medical workers other than doctors.

Moody also argues that the summary falsely promises that “[n]o law shall prohibit, penalize, delay, or restrict abortion before viability” without the caveat that the federal government may one day pass an anti-abortion law. She does mention a 2003 federal law banning “partial-birth abortions” (first filed in 1995 by Canady, then a Florida congressman).

The court accepted similar arguments regarding application of federal law in blocking a proposed amendment on recreational marijuana in 2021.

But even the federal law at issue here provides exemptions when “necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”

Florida law already allows abortions after 15 weeks’ gestation when “necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition.”

Broader move

Moody’s brief looks beyond the merits of this one initiative to ask the court to toughen its standard for reviewing proposed amendments’ ballot language. Now, the approach is officially “deferential,” invalidating an initiative “only if it is shown to be ‘clearly and conclusively defective.’”

“But the question should simply be whether the summary violates either of these statutory requirements, not whether it does so ‘clearly.’ Far from undermining Floridians’ right to formulate their own organic law, careful judicial analysis of a ballot summary reinforces democracy by ensuring that the people are fully informed before changing Florida’s governing charter,” her brief says.

She even quotes Justice Charles Canady’s dissent from an earlier ruling on the point, in which he wrote that the people’s “right to vote on constitutional amendments” is “subverted when the voters are presented a misleading ballot summary.”

If the court adopts Moody’s hard line about screening ballot initiatives, Floridians could lose the only avenue around unpopular policies imposed by Republican-dominated state government (including the court itself). (In a Pew Research Center poll this year, 56% of adult Floridians favored making abortion legal in all or most cases with 39% in favor of making it illegal in all or most cases.)

It might not be necessary to go that far this time, Moody’s brief adds: “The court need not revisit its standard of review here, however, because the Amendment to Limit Government Interference with Abortion initiative is clearly and conclusively defective and would fail even under that more deferential standard.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.