Legal challenges intensify over abortion ballot proposal in Florida
TALLAHASSEE - With Floridians already voting by mail in the runup to the Nov. 5 election, fierce legal wrangling continues to escalate over a ballot measure that would enshrine abortion rights in the state Constitution.
The Florida governor's office is reacting after a federal judge on Thursday ordered the state to stop threatening television stations running an ad in favor of Amendment 4.
That is the amendment in support of restoring abortion rights.
The ruling, which is considered a victory for the Yes Amendment campaign, was mainly based on what federal judge Mark Walker called "constitutionally protected political speech."
"What the (state) government explanation was is that the speech is false, they said that's why we're trying to remove it from public domain," said Daniela Abratt-Cohen, a media law attorney. She said political speech is protected by the First Amendment.
"And, what the court is saying here is no, falsity of a speech is not a reason. The antidote to "falsity" is counter speech, speak out against it; give your side of the story. But, you cannot censor or remove speech you believe is false," said Abratt-Cohen.
Chief U.S. District Judge Mark Walker on Friday set an Oct. 29 hearing on the request for a preliminary injunction.
The lawsuit came amid an intense political battle about Amendment 4, which DeSantis and his administration are fiercely fighting. Floridians Protecting Freedom began pursuing the ballot initiative last year after DeSantis and the Republican-controlled Legislature approved a law largely preventing abortions after six weeks of pregnancy.
The Florida Department of Health earlier this month sent letters to TV stations calling for them to stop running a Floridians Protecting Freedom ad. The department alleged that the ad included false and "dangerous" information and threatened to seek injunctions or possible criminal prosecution against the stations.
The controversial ad tells the story of a woman who was diagnosed with terminal brain cancer when she was 18 weeks pregnant. Doctors told the woman they could not treat her with chemotherapy or radiation while pregnant, so she had an abortion. The ad asserts that current Florida law, which restricts abortions after six weeks of pregnancy, would prevent abortions in such cases.
The Department of Health letter disputed the assertion, saying that the six-week law includes exceptions to allow abortions to save pregnant women's lives or to "avert a serious risk of substantial and irreversible physical impairment of a major bodily function." In threatening action against TV stations, the letter cited a law aimed at targeting a "sanitary nuisance," drawing a harsh rebuke from Walker in Thursday's ruling.
"It is no answer to suggest that the Department of Health is merely flexing its traditional police powers to protect health and safety by prosecuting 'false advertising' - if the state can re-brand rank viewpoint discriminatory suppression of political speech as a 'sanitary nuisance,' then any political viewpoint with which the State disagrees is fair game for censorship," the judge wrote.
Walker noted that the state "has actively undertaken its own anti-Amendment 4 campaign to educate the public about its view of Florida's abortion laws and to correct the record, as it sees fit, concerning pro-Amendment 4 speech."
The woman in the ad, identified only as "Caroline" due to concerns for her personal safety, joined other supporters of the proposal during a virtual press conference Friday.
"For me, abortion care was medically necessary to save my life," she told reporters.
The woman said she was surprised when the ad became the focus of litigation.
"It stung a bit, because I was receiving so much compassion and support initially" until the letters were sent to the stations, she said.
"I was also packing up my house to evacuate for Milton, so I didn't really have time to think about it," she added, referring to Hurricane Milton, which made landfall in Sarasota County on Oct. 10 and caused widespread damage along the Gulf Coast and across Central Florida.
The DeSantis administration has targeted the proposal in other ways, such as paying for public service announcements urging a "no" vote on the measure and setting up a webpage warning against it.
In addition, the Florida Department of State's Office of Election Crimes and Security released a 388-page report last week accusing some of the workers who collected signatures for the ballot initiative of fraud. The report also accused Floridians Protecting Freedom of illegally paying workers based on the number of signatures they collected.
Opponents of the abortion measure filed lawsuits Tuesday seeking to invalidate the proposed amendment, relying heavily on the state's report.
"The presence of fraud and intentional wrongdoing, the failure to substantially comply with the signature verification laws, and the significant irregularities in the petition gathering and submission process in support of Amendment 4 adversely affects the sanctity of the ballot and the integrity of the election," the lawsuit, filed in the 9th Judicial Circuit, said. "Fraud and intentional wrongdoing permeated the entire petition collection and verification process to the extent the validity of Amendment 4's placement on the ballot is tainted."
Plaintiffs in the lawsuits, filed in numerous jurisdictions throughout the state, are being represented by attorney Alan Lawson, a former Florida Supreme Court justice.
Floridians Protecting Freedom Campaign Director Lauren Brenzel called the litigation "a deeply troubling anti-democratic effort" to keep voters from weighing in on abortion rights.
"This campaign has been run above board and followed state law at every turn. What we are seeing now is nothing more than dishonest distractions and desperate attempts to silence voters," Brenzel said in a statement.