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Backers of a proposed abortion amendment fire back at Moody's 'viability' argument

Abortion law concept.
The Florida Supreme Court must approve the wording of the ballot summary, which is the part of the amendment that voters would see.

Attorneys for Floridians Protecting Freedom wrote that the meaning of “viability” in the context of abortion has long been understood. Attorney General Ashley Moody contents otherwise.

Supporters of a proposed constitutional amendment that would ensure abortion rights in Florida have fired back at Attorney General Ashley Moody’s arguments that the measure should be blocked from the 2024 ballot.

The political committee Floridians Protecting Freedom, which is sponsoring the proposal, filed a brief late Friday at the Florida Supreme Court disputing Moody’s contention that the measure would be misleading to voters.

Moody and other opponents last month raised a series of objections to the proposal’s wording, including contending that the word “viability” can have multiple meanings.

But attorneys for Floridians Protecting Freedom wrote Friday that the meaning of the word “viability” in the context of abortion has long been understood and that voters “can be trusted to know what it would mean to live in a world limiting government interference with abortion before viability.”

“Lacking colorable legal arguments against the proposed amendment’s fitness for the ballot, the attorney general argues the term ‘viability’ has lost its meaning in the abortion context, notwithstanding the countless sources consistently defining it in line with common understanding,” the brief said.

The Florida dispute is playing out after voters in some other states have backed abortion rights, most recently last week in Ohio. Ballot measures emerged after the U.S. Supreme Court last year struck down the decades-old Roe v. Wade ruling, effectively leaving abortion decisions to states.

Floridians Protecting Freedom announced its initiative in May after the Republican-controlled Legislature and Gov. Ron DeSantis approved a law that could prevent abortions after six weeks of pregnancy. The six-week limit is contingent on the outcome of a legal battle about a 15-week abortion limit that DeSantis and lawmakers passed in 2022.

To get on the November 2024 ballot, Floridians Protecting Freedom needs to submit at least 891,523 valid petition signatures before a Feb. 1 deadline and receive Florida Supreme Court approval of the wording of the ballot summary, which is the part of the amendment that voters would see.

The ballot summary says, 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.”

In an Oct. 31 brief, Moody described the measure as an effort to “hoodwink” voters and said the ballot summary is part of an “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.”

Part of her argument dealt with the definition of “viability.” Under Roe v. Wade, fetal viability was generally understood to mean about 23 or 24 weeks into pregnancy. But Moody argued that some voters could interpret viability differently than was understood under Roe v. Wade and another U.S. Supreme Court decision known as Planned Parenthood v. Casey.

“Others will understand ‘viability’ in 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,” Moody’s brief said. “This ambiguity is no small interpretive quibble; ‘viability’ in the Roe/Casey sense occurs much later than in the traditional clinical sense. And polling shows that the stage of pregnancy at which abortion becomes illegal is crucial to whether voters approve of particular restrictions on abortion.”

But the Floridians Protecting Freedom brief Friday said that as “it always has in the context of abortion, viability means the point at which a fetus could survive outside the womb.”

“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 brief said. “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.”

Also Moody argued that the ballot summary did not define the term “healthcare provider” and pointed to the wording that “no law shall” restrict abortions — saying that doesn’t take into account the possibility of federal restrictions.

But the Floridians Protecting Freedom brief accused opponents of trying to “create ambiguity where there is none.”

The Supreme Court has not scheduled arguments in the case. As of Monday morning, the state Division of Elections website showed that 491,892 valid petition signatures had been submitted for the proposed amendment.

Several groups on either side of the issue also have filed briefs at the Supreme Court.

Jim Saunders is the Executive Editor of The News Service Of Florida.