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Abortion Rights Group Challenges Florida AG’s Efforts to Block Ballot Measure

Republican State Attorney General Ashley Moody claims the term “viability” is too confusing for voters.

Abortion rights advocates at a rally and overnight sit-in at Five Points Park in Sarasota, Florida, on June 24, 2022.

An abortion rights group in Florida, seeking to put an amendment measure on a statewide ballot next year, has filed a response brief to complaints from the Republican state attorney general, who alleges that the wording of the proposal is too confusing for voters.

Floridians Protecting Freedom, the group pushing for the initiative, has collected more than 490,000 of the roughly 892,000 signatures required to put the measure on the ballot in 2024. The group has until February 1 of next year to collect the remaining signatures needed, though it intends to collect much more by that time.

Under state law, every ballot measure that reaches a certain threshold must be reviewed by the state Supreme Court. State officials can either express support or opposition to those measures. State Attorney General Ashley Moody (R) filed a brief on October 31 opposing the measure, claiming the wording that would alter the state’s constitution is too vague for the average voter to understand.

The text of the proposal reads, in part:

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.

Moody, who describes herself as “unabashedly” anti-abortion, claimed in her briefing to the court that the word “viability” is too broad, and that voters won’t understand what it means if the language isn’t changed. She’s urging the court to block the measure entirely due to its language, alleging that the amendment is trying to “hoodwink” voters into supporting abortion rights.

Moody also suggested, falsely, that viability means, “but for an abortion or other misfortune,” any pregnancy that could “result in [a] child’s live birth.” In fact, a “viable” pregnancy, in both legal and medical terms, is widely understood to be around 22-24 weeks of pregnancy and beyond.

In its response brief on Monday, Floridians Protecting Freedoms chastised Moody’s claims, stating that Florida residents have lived for several decades with a firm understanding of what viability means, as it was the standard in federal abortion law up until the federal Supreme Court upended abortion rights in 2022.

“Nothing about the meaning of the term ‘viability’ in the phrase ‘abortion before viability’ is ambiguous or misleading here: It has a well-understood, commonly accepted meaning amongst the general public that accords with its legal significance,” the organization wrote in its briefing. “Indeed, for more than four decades, Florida law’s understanding of viability has reflected its common meaning. The popular meaning of viability was first adopted in Florida statutes in 1979 … and has remained consistent for the past 40 years.”

Floridians Protecting Freedom wasn’t the only group to file a brief in support of advancing the ballot measure’s current language. Four other support briefs — from constitutional law scholars, doctors, the American College of Obstetricians and Gynecologists and even a group of 10 former Republican state lawmakers — have been filed this month, backing the measure and arguing against Moody’s interpretations of the definition of “viability.”

Due to a law enacted by the Florida legislature after the U.S. Supreme Court overturned Roe v. Wade, abortion in Florida is currently restricted after 15 weeks of pregnancy, with limited exceptions. The state legislature also passed a six-week ban, but that law is currently blocked until a judicial review of the 15-week ban is completed.

If an abortion measure does make it to the state ballot next year, it would face another hurdle toward becoming a state constitutional amendment, as such measures are required to reach a 60 percent-voter threshold to change the state’s highest governing document. Polling, however, indicates that reaching that threshold is possible — in a poll from May 2022, for example, 67 percent of state residents said they support making abortion legal in all or most circumstances.

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