Florida Becomes Latest State to Fight Abortion Ballot Measure with ‘Viability’ Question

An advocate told Jezebel that the state's Republican Attorney General is pushing a deliberately dishonest argument.

Florida Becomes Latest State to Fight Abortion Ballot Measure with ‘Viability’ Question
Florida Gov. Ron DeSantis listens as Florida Attorney General Ashley Moody speaks during a press conference in 2022. Photo:Joe Raedle (Getty Images)

On Monday, Florida Attorney General Ashley Moody (R) submitted a court filing to the state Supreme Court claiming a proposed ballot measure to enshrine abortion rights in the state “does not satisfy the legal requirements for ballot placement.” The proposed amendment in question, led by Floridians Protecting Freedom, would prohibit state restrictions on abortion viability. Currently, abortion is banned at around 15 weeks in the state; Gov. Ron DeSantis (R) signed a six-week ban earlier this year which is currently blocked in court.

Florida abortion rights advocates began working to collect the 891,523 required signatures to get this proposed measure on the Nov. 2024 ballot in May, shortly after DeSantis signed the six-week abortion ban into law. Floridians Protecting Freedom has until Feb. 1 to collect the signatures, and Moody’s court filing comes as the group has hit nearly the halfway point, submitting 402,082 validated signatures as of Monday afternoon.

As the Orlando Sentinel notes, the state Supreme Court plays a “gatekeeper role”: Its job is to review proposed ballot measures and determine if their language is clear and whether the proposal sticks to a single issue. Moody, who’s a close ally to DeSantis and vocal about her anti-abortion stance, is arguing to the court that the proposed abortion measure doesn’t meet the legal standards. In Monday’s court filing, she wrote that she’ll submit a brief further explaining her opposition at a later time, but for now, she wrote in an op-ed in Florida’s Voice over the weekend that she takes particular issue with the proposed measure’s use of the term “viability.”

With this argument, the Florida attorney general appears to be taking a page from top Republicans across the country who are also fighting abortion rights ballot measures with deceptive, fearmongering language. Ohio and Missouri Republicans are similarly trying to frame abortion rights activists as trying to allow abortion past viability. “While I personally would not vote for this initiative no matter what definition of ‘viability’ it was using, I know that to some voters, it is material to their vote—whether you are talking about an abortion in the first trimester or at the end of the second trimester,” Moody wrote in the op-ed. “Floridians are entitled to know clearly and concisely what they are voting for or against.”

In a statement shared with Jezebel responding to Moody’s comments, Floridians Protecting Freedom campaign director Lauren Brenzel said the group’s proposed measure “is clear and precise in limiting government interference with abortion ‘before viability.’”

Fetal viability is the point when the fetus can supposedly survive outside the womb, appraised by lawmakers as around 24 weeks. The term isn’t at all as arbitrary as anti-abortion politicians make it out to be. Yet the issue of viability has become increasingly weaponized by anti-abortion politicians, who know that the issue is broadly popular, and who rely on misinformation—like the bonkers lie that Democrats support abortion “up until birth,” which is literally just feticide—to attack abortion rights. Most abortions take place in the first trimester but later abortions do happen, sometimes as a result of extreme fetal conditions or delayed access to abortion. Later abortion seekers, as Mother Jones has pointed out, tend to be among the most vulnerable, including children and abuse survivors.

“Viability in the abortion context has always meant the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures,” Brenzel wrote. “This is how the state of Florida itself defines viability. This is how the United States Supreme Court and Florida Supreme Court still define viability. Dictionaries, encyclopedias, and doctors also define viability this way in the abortion context.” She continued, “This is a disingenuous argument by a politician desperate to block Floridians from voting on this amendment.”

In September, Ohio’s state Supreme Court ruled largely in favor of an inflammatory summary written by the state’s anti-abortion secretary of state to appear on ballots for a proposed abortion rights measure. The summary refers to embryos and fetuses as an “unborn child” and claims the measure would “always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability.” This is despite how Ohio advocates’ proposed amendment explicitly states that it would allow abortion only until viability. Similarly in Missouri, top Republicans have tried to block a proposed abortion rights ballot measure by claiming it would somehow cost voters $12 billion and allow abortion up until “live birth.” (A judge last month moved to block the latter language from appearing on ballots.) All of this is intentionally jarring terminology used to stigmatize later abortions.

Brenzel told Jezebel she has faith that Floridians will ultimately see through Moody’s dishonest characterization of their proposal: “Voters know what viability means and they will see right through this effort to silence their voice.”

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