In a brief filed with the Florida Supreme Court Monday, Moody wrote, “I submit that the aforementioned initiative does not satisfy the legal requirements for ballot placement” without specifying her objections.
However, in a recent op-ed published by Florida’s Voice, a news website founded and partially funded by a conservative activist, Moody wrote that her opposition to the proposal “has nothing to do with my personal views on abortion,” but rather language within the proposed ballot initiative that she believes would “mislead voters.”
The ballot initiative — a proposed amendment to Florida’s state constitution — would prohibit laws in Florida that restrict abortion “before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.” It’s backed by Floridians Protecting Freedom, a political committee in support of abortion rights.
Currently, abortion is legal up to 15 weeks of pregnancy in Florida, while a six-week ban signed into law by Florida Gov. Ron DeSantis in April remains on hold, pending a Florida Supreme Court review.
Moody, a staunch conservative first elected Attorney General in 2019, described Floridians Protecting Freedom's ballot language in her op-ed as “one of the worst” examples of ballot initiative language she’s ever seen.Her primary grievance is the use of the term “viability” — a term that’s become increasingly politicized in recent years with the anti-abortion movement gaining greater political influence.
Moody argues that Floridians Protecting Freedom’s use of the term “viability” is too vague, since the term can, according to medical experts, have different definitions.Generally, the term is understood as the point at which a fetus can survive outside the womb, around 24 weeks of pregnancy.
But, as the American College of Obstetricians and Gynecologists — a membership organization that opposes Florida’s abortion ban and similar abortion restrictions — points out, “viability” can also refer to whether a pregnancy is expected to continue normally. A normally developing pregnancy — where there hasn’t been miscarriage or early pregnancy loss — can similarly be described as “viable.”
Moody argues this makes Floridians Protecting Freedom’s proposal misleading, since the proposal itself doesn’t clarify what it means by “viability.”“While I personally would not vote for this initiative no matter what definition of ‘viability’ it was using,” Moody continues in her opinion article, “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.”
What Moody doesn’t address in her op-ed, however, is that Florida statutes clearly set out a definition of “viability” as “the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.”The 2023 Florida Statutes
Title XXIX: Public Health
Chapter 390: Termination of Pregnancies
390.011 (15): “Viable” or “viability” means the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.
This definition was clearly good enough for Florida's Republican base in 2014, when then-Gov. Rick Scott signed a law explicitly banning abortion after “fetal viability” is achieved. This replaced a law that banned abortions after 24 weeks of pregnancy, unless the pregnant person's life was at risk.
That 2014 law, largely passed along party lines, added the definitions of “viable” and “viability” to Florida statutes that are still there today."The proposed amendment is clear and precise in limiting government interference with abortion ‘before viability,’" said Lauren Brenzel, campaign director of Floridians Protecting Freedom, in an emailed statement to Orlando Weekly. “This is a disingenuous argument by a politician desperate to block Floridians from voting on this amendment.”
“This is a disingenuous argument by a politician desperate to block Floridians from voting on this amendment.”
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But Florida isn’t the only state where some grievance or another has been aired by conservatives who have a problem with citizen-led initiatives to expand or protect abortion access. Ballot initiative fights also have played out in other states — from Kansas to Michigan to Ohio — since the U.S. Supreme Court last year overturned the landmark Roe v. Wade abortion-rights decision. The Supreme Court’s ruling in 2022 left abortion decisions to states, some of which have moved to either preserve abortion access or ban abortions entirely.
In Florida, the state Supreme Court — which is packed with conservative justices, including some with ties to the anti-abortion movement — plays a key gatekeeper role for ballot initiatives.
It reviews proposed ballot initiatives to determine if the wording is clear and is limited to single subjects. It is also empowered to reject initiatives that don’t meet legal standards.“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 explained, pointing to Florida's definition, as well as definitions commonly found in dictionaries, encyclopedias, and from healthcare providers. “Voters know what viability means and they will see right through this effort to silence their voice.”
The term “viability” has been targeted in other ballot initiative fights. For instance in California and in Missouri. It’s also caused splits between some abortion rights activists. A Planned Parenthood affiliate in Missouri argued in a memo that viability “is not a medical construct and has no relevance to clinical care."
“It is a political construct set under Roe v. Wade,” the group (not representative of Planned Parenthood as a whole) wrote. “We now know that the viability standard tried and failed to balance state and personal interests, and it did not work.”
Viability isn’t a clear-cut limit. Even Florida’s definition could allow for interpretation by medical professionals, based on individual health factors pertinent to each specific pregnancy.The American College of Obstetricians and Gynecologists group, a professional membership organization for tens of thousands of OB-GYNs nationwide, shares on its website that it “strongly discourages the inclusion of viability in legislation or regulation.”
“The concept of viability of a fetus is frequently misrepresented or misinterpreted based on ideological principles,” the group (which, granted, has a history of donating to anti-abortion politicians, despite opposing abortion bans) explains. “This perpetuates incorrect and unscientific understandings of medical terms and leads to interference in the practice of medicine.”Still, Florida’s abortion rights proposal — backed by a coalition of abortion rights organizations such as Planned Parenthood, the ACLU of Florida, Florida Rising and the 1199 SEIU Florida labor union — has proved popular in this so-called “red state.”
Al in all, the group needs to collect a minimum 891,523 signatures for the proposal to be placed on the 2024 ballot — subject to the high court’s review. If approved, the initiative would then need at least 60% of support from Florida voters in 2024 to pass.
Floridians Protecting Freedom, for its part, is optimistic their initiative would prove popular at the polls.
“Every time abortion access has been on the ballot since Roe v. Wade was overturned, voters have spoken out in support of access and keeping the government out of our private lives,” wrote Brenzel, of Floridians Protecting Freedom, in a statement last month.
“We’re not just talking about places like Vermont and California, but also in states from Kansas to Kentucky,” Brenzel continued. “Our amendment will qualify for the ballot and, come next November, Floridians will add their voices to the chorus of support across the country for patients having control of their own lives, bodies and futures.”
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