Florida Attorney General Ashley Moody unholstered one bogeyman after another in urging the state Supreme Court to deny Floridians even the opportunity to vote on a proposed constitutional amendment enshrining abortion rights. Her legal brief in a procedural matter is a nakedly political assault on privacy, freedom, medicine — and even the English language itself. The court should see through this maneuvering and allow Floridians to address this issue through the democratic process.
Moody filed a 50-page brief in October asking the high court to keep the abortion rights proposal off the 2024 ballot. Her petition is a drive-by attack on the facts and common sense that would stray the court far beyond its narrow role of determining whether the language behind the amendment is “clear and unambiguous” and limited to a single subject.
The ballot summary is straightforward; “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.” Yet Moody argues the language is misleading, contending that some voters could interpret the word “viability” differently from the 23 to 24 weeks into a pregnancy that’s the generally accepted point at which a fetus could survive outside the womb.
“This ambiguity is no small interpretive quibble,” Moody wrote in her brief. “And polling shows that the stage of pregnancy at which abortion becomes illegal is crucial to whether voters approve of particular restrictions on abortion.”
Moody also faulted the ballot summary for not explaining whether a “patient’s health” included mental health, a standard she said could be interpreted expansively “to justify a much larger number of abortions.” She further questioned whether the term “healthcare provider” was so broad that someone other than a doctor ― “nearly any staff involved in some way in caring for the patient,” or even “regular employees of a corporate ‘healthcare provider’” — might qualify to make the determination whether a fetus was viable.
These arguments are distractions meant to inflame the debate and to goad the court into overstepping its authority. As the sponsor of the initiative, Floridians Protecting Freedom, noted in its response brief to the court last week, the words “‘health,” “healthcare provider” and “viability” have common-sense meanings. “In fact,” the group wrote, “‘health’ and ‘healthcare provider’ have previously been used in ballot summaries this court approved.” Further, Florida law has accepted the meaning of “viability” for decades. “The popular meaning of viability was first adopted in Florida statutes in 1979,” the sponsor’s brief noted, “and has remained consistent for the past 40 years.”
The sponsors rightly dismissed Moody’s suppositions as “fundamentally political arguments about the proposed amendment’s merits that have no bearing on the task before the court.” Her misrepresentation of the viability guidance by the American College of Obstetricians and Gynecologists prompted that group to file its own brief, in which it supported the ballot language as “clear and unambiguous” and faulted the attorney general for distorting terminology the courts and medical professionals have accepted for decades.
But leave aside Moody’s more preposterous suggestion that this amendment would enable a woman to take advice on a fetus’ viability from any hospital employee, including, say, a parking attendant. The issue before the justices isn’t the morality of abortion, the merits of protecting the procedure or how often it’s used, but rather whether the language before the voters is clearly and conclusively defective.
Spend your days with Hayes
Subscribe to our free Stephinitely newsletter
You’re all signed up!
Want more of our free, weekly newsletters in your inbox? Let’s get started.Explore all your options
Moody is attempting to wrangle an outcome from the court that she has every reason to fear won’t come from the voting booth. Why else pepper a pleading in a procedural matter with polling data and political snark and bother to criticize the U.S. Supreme Court’s 1973 Roe v. Wade decision, which guaranteed abortion rights (and which the high court overturned last year) as “egregiously wrong”?
Abortion is a serious and controversial policy matter that involves a multitude of rights, and the process for amending Florida’s constitution has significant hurdles already. The fate of this amendment cannot come down to judicial bias or word games. The court needs to show deference to plain English and appreciate that voters are uniquely conversant on this issue. Floridians understand what’s at stake and deserve to have their say.
Editorials are the institutional voice of the Tampa Bay Times. The members of the Editorial Board are Editor of Editorials Graham Brink, Sherri Day, Sebastian Dortch, John Hill, Jim Verhulst and Chairman and CEO Conan Gallaty. Follow @TBTimes_Opinion on Twitter for more opinion news.