In new brief, Moody claims abortion amendment would let providers self-regulate

She again asks Florida Supreme Court to withhold measure from ballot

By: - November 16, 2023 12:40 pm

Florida’s Supreme Court. Sept. 8, 2023

Attorney General Ashley Moody doubles down in her latest Florida Supreme Court filing on her contention that the proposed state constitutional amendment to protect abortion rights is too vague to go before the voters and would take away the state’s power to intervene.

Moody makes these arguments in a legal brief filed Wednesday with the court, which must decide whether the ballot summary proposed by Floridians Protecting Freedom for its Amendment to Limit Government Interference with Abortion might mislead the voters or give them a false sense of what the petition initiative would allow if enacted.

Florida Attorney Ashley Moody. Source: Screenshot/Florida Channel

Moody’s brief suggests the amendment would give health care providers the power to decide both what constitutes “viability” of a pregnancy and whether the “health” of the pregnant person justified a late term abortion without disclosing that to voters. “In essence,” providers would be “serving as their own regulators,” it asserts.

“On that understanding, there would be no room to prosecute a doctor who performs an abortion on a baby with a gestational age of 39 weeks, because the state would have no license to second-guess the physician’s representation that the baby was not viable. In effect, the health care provider would exercise unreviewable discretion to regulate whether the provider itself may perform an abortion, free of legal constraint,” it says.

“Ordinarily, the legislature or executive would have some authority to flesh out the meaning of open-ended terms like ‘viability’ and ‘health,’ through post-amendment legislation or rule-making. The judiciary would also have authority to interpret and apply those terms to any abortion restrictions that the legislature enacts or to prosecutions that the executive might bring under those restrictions,” the brief continues.

“But if ‘health care providers’ can determine for themselves whether an abortion is necessary to the mother’s ‘health’ or whether a baby has reached ‘viability,’ very little, if any, of the power to enact, prosecute, or adjudicate laws restricting abortion will be left to the three branches of government. This precipitous shift in lawmaking power should be made explicit to the voters. The ballot summary fails to do so.”


The petition gathering began after the U.S. Supreme Court overruled Roe v. Wade last summer and the Legislature passed a ban on abortions following 15 weeks’ gestation, and subsequently a six-week ban. That latter would take effect if the Florida Supreme Court overrules its own 1989 precedent finding a right to abortion under the state Constitution’s privacy clause.

The court has already heard oral arguments on that matter and a ruling is pending.

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.”

As of the latest update, Floridians Protecting Freedom had gathered 491,892 of the 891,523 petition signatures necessary to qualify for the ballot, but that’s enough to trigger Florida Supreme Court review of the ballot summary and an estimate by state economists of its fiscal implications.

Legal pleadings

In an earlier brief, filed at the end of October, the Republican attorney general argued the ballot language is “misleading” about the breadth of the proposed amendment and an attempt to “hoodwink” voters.

Moody filed her second brief on Wednesday and it was posted to the case docket on Thursday, along with second briefs by Susan B. Anthony Pro-Life America, the Florida Conference of Catholic Bishops, and Florida Voters Against Extremism — that last group organized expressly to oppose the initiative. The opponents have asked the justices to hear oral arguments in the case.

Floridians Protecting Freedom, in its brief, argued the language is perfectly plain and easily comprehensible, and that the justices shouldn’t let “political questions” distract it from its duty to let the people decide.

Justice Charles Canady. Credit: Florida Supreme Court

That brief countered another Moody argument — that the ballot language fails to disclose that federal law could intrude on abortion rights, including through the 2003 federal ban on “partial birth abortions” (first filed in 1995 by Charles Canady, then a Florida congressman, now a justice of the Florida Supreme Court).

That refers to a procedure used in late abortions that entails the partial delivery of the fetus in rare cases to minimize damage to the uterus. Even the federal ban contains exceptions when “necessary to save the life of a mother.”

Federal law?

Floridians Protecting Freedom argued that the court doesn’t generally require ballot language to explore the broad range of federal law, given the limit on length, but Moody begged to differ.

“No one is saying the sponsor should have packed a comprehensive treatment of the meaning of the Partial-Birth Abortion Ban Act into the 75 words allotted … for the ballot summary. One additional word (out of the 26 left over from what the sponsor chose to include in the ballot summary) would have done the trick: ‘No state law shall … .’” (Emphasis in the original)

“That single word also would have addressed the possibility that Congress would in the future enact further preemptive legislation restricting the practice of abortion. Saying ‘no law’ without the slightest qualification makes the ballot summary affirmatively misleading. Confronting this problem in no way portends an ‘onerous federal-law-identification requirement’ that is not ‘workable,’” Moody’s says.

“No amendment will ever be entirely free of ambiguity; constitutional text always requires some explication and interpretation by the legislature, executive, and judiciary,” it continues.

“But more is required when an amendment’s central operative terms — here, ‘viability,’ ‘health,’ and ‘health care provider’ — bear such a wide range of meaning as to leave to conjecture what will be the ‘main effect’ of the amendment. Amendment text of that breadth requires further explanation in the ballot summary so that voters can understand the amendment’s ‘chief purpose.’ Otherwise, voters could approve, or disapprove, the amendment despite sharply different understandings of what the amendment will do.”

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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.