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GOP seeking to head off ballot initiatives on abortion access, Florida’s included

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GOP seeking to head off ballot initiatives on abortion access, Florida’s included

Dec 08, 2023 | 7:00 am ET
By Michael Moline
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GOP seeking to head off ballot initiatives on abortion access, Florida’s included
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MIAMI, FLORIDA - NOVEMBER 08: Republican presidential candidate Florida Gov. Ron DeSantis speaks to reporters in the spin room following the NBC News Republican Presidential Primary Debate at the Adrienne Arsht Center for the Performing Arts of Miami-Dade County on November 8, 2023 in Miami, Florida. Five presidential hopefuls squared off in the third Republican primary debate as former U.S. President Donald Trump, currently facing indictments in four locations, declined again to participate. (Photo by Anna Moneymaker/Getty Images)

Gov. Ron DeSantis was blunt following a GOP presidential primary debate on Nov. 8: Abortion-rights referenda are becoming a problem for leaders like himself who want to come as close as possible to outlawing the procedure.

“Pro-lifers in particular have a big problem on these referenda,” DeSantis said during an interview with NBC News, referring in particular to Ohio voters’ decision that very week to enact a constitutional amendment protecting abortion rights, even though, as he noted, many of the voters support Republican candidates.

“But if the [abortion] issue is presented the way it is, they’re willing to vote for what from a pro-life perspective was a very extreme, very expansive pro-abortion amendment,” said DeSantis.

“So, I think the pro-life movement has got to start keying in on these referenda. You gotta be strategic about how you’re doing it; you need to know the landscape that you’re dealing with. There may be some states where you shoot in a certain direction; there may be others, you shoot in a different one. But they have been getting their clock cleaned on the referenda.”

In other words, either change the terms of the debate by injecting it with misinformation or look for ways to override the referendum process.

GOP seeking to head off ballot initiatives on abortion access, Florida’s included
Florida Attorney General Ashley Moody addresses a news conference in South Florida on Nov. 2, 2023. FL Channel Screenshot.

That’s being attempted in Florida, where Republican Attorney General Ashley Moody has asked the Florida Supreme Court to block a popular vote on a proposed constitutional amendment to enshrine protection of abortion rights in the Florida Constitution.

It’s happening in Arkansas, where state Attorney General Tim Griffin simply rejected a pro-abortion rights referendum on the ground that its ballot language was ambiguous.

Ohio

Then there’s Ohio, where, after voters OK’d the abortion-rights referendum called Issue 1 by a 13-point margin last month, anti-abortion Republicans immediately began looking for legislative avenues to undermine the initiative, as the Phoenix-affiliated Ohio Capital Journal has reported. That’s the state a 10-year-old rape victim had to flee to secure an abortion.

We don’t know yet how those efforts will work out, but at least the Missouri Supreme Court has blocked an attempt by Republican Secretary of State John Ashcroft to rewrite ballot language for a proposed abortion-rights initiative to make it less attractive — including that the measure would “nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion.”

The court in November let stand a lower court’s finding that Ashcroft’s language was “replete with politically partisan language.”

GOP seeking to head off ballot initiatives on abortion access, Florida’s included
Skye Perryman via Democracy Forward

“This is something that’s obviously affects folks in Florida, but it’s also a larger national trend that we’re seeing — which is really far right policymakers and others trying to go out of their way to either keep things off the ballots, keep voters from being able to exercise their voice on important issues, or to engage in misinformation to sort of confuse things,” Skye Perryman, president and CEO of Democracy Forward, an advocacy group, told the Phoenix in a telephone interview.

In Florida, an organization called Floridians Protecting Freedom is circulating petitions to add explicit protections for abortion access to the Florida Constitution. The drive was a response to enactment of a 15-week abortion ban in 2022, in anticipation of the U.S. Supreme Court’s reversal that summer of Roe v. Wade, and then, earlier this year, of a six-week ban.

Court challenge

The Florida Supreme Court could rule at any time whether the 15-week ban is constitutional, but that would require the justices to reverse a 1989 precedent to the contrary. If it does, the six-week ban takes effect 30 days later. That case tests whether the constitution’s privacy clause was intended to cover abortion access. The title of the new initiative leaves no doubt to its intention: It’s called the “Amendment to Limit Government Interference with Abortion.”

GOP seeking to head off ballot initiatives on abortion access, Florida’s included
Florida Supreme Court Chief Justice Carlos Muñiz participated in oral arguments over abortion rights in Florida on Sept. 8, 2023. Source: Screenshot/Florida Channel

The court also must decide whether the amendment can go on the 2024 general election ballot. The justices aren’t supposed to consider the merits of the policy it would enact — merely whether the ballot summary would confuse voters about what the initiative would do. That said, members of the court’s majority, including five DeSantis appointees, are longstanding opponents of abortion rights.

The Florida ballot language at issue reads: “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. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

In briefs filed with the Supreme Court, Moody argues the language would “hoodwink” voters. She asserts that the meaning of “viability” is ambiguous.

“The ballot summary here is part of a similar 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,” her brief says.

Initiative supporters argue that voters well understand that viability means the point at which a fetus can survive outside the womb, with the state allowed to intervene past that point if it can show a compelling reason, similar to the situation under Roe.

Disinformation

But abortion rights opponents underscored Moody’s argument. “Proposed Amendment hides from voters its sponsors’ true purpose: to codify unrestricted abortion as a fundamental right in Florida’s Constitution and allow abortions for virtually any reason, at any stage of the pregnancy,” the brief filed in November by Florida Voters Against Extremism, founded specifically to oppose the amendment, reads.

“What we know is that far right extreme actors have invested in organizations that seek to produce inaccurate information in the context of reproductive health care,” said Perryman, who contributed an amicus brief supporting placing the Florida amendment on the ballot.

DeSantis himself has accused Democrats of supporting “post-birth abortions” or “infanticide” — a blatant distortion of the facts widely circulated within the anti-abortion movement.

“There are organizations that have labeled themselves, such as the American Academy of Pro-Life OBGYNs, who routinely put information into the public domain that is not based on medical science or evidence, that is out of step with the views of the mainstream medical and research communities in this country,” Perryman said.

“We alsoknow that there are many other efforts by this movement to try to perpetuate misinformation online in various forms in order to prevent people from being able to participate in their democracy,” she said — mentioning Moms for Liberty and their campaign against schoolbooks containing LGBTQ+ material and Black history, “stoking culture wars and perpetuating misinformation about books and ideas and educational systems.”

‘A lot of thought’

Initiative supporters fully expected Moody to raise the issues she did, Amy Weintraub, reproductive rights director for Progress Florida, one of the organizations assisting in the petition drive, said in a phone interview.

GOP seeking to head off ballot initiatives on abortion access, Florida’s included
Amy Weintraub via Progress Florida

“The people who put together the wording for our ballot measure put a lot of thought into what would meet the state standards for ballot initiatives, and we are very, very confident that we have taken everything into consideration,” Weintraub said.

As doctrinaire as the court might be, “They still have to abide by Florida law,” she added.

“They don’t have to agree with the amendment, but they do have to agree that it’s within a certain number of words, that it’s clear, that it is one issue, and we believe that we’ve hit all of those [legal criteria].”

Since Dobbs v. Jackson Women’s Health Organization, overturning Roe, came down from the U.S. Supreme Court in June 2022, abortion has roiled state politics across the nation. Voters in Kansas, Kentucky, Michigan, and Vermont have defeated initiatives to restrict abortion or else passed protections for abortion rights, to name a few.

In Ohio, Republican state legislators have proposed a variety of crimps on abortion rights since Issue 1 passed, including a 15-week ban on the procedure and moving enforcement of abortion rights from the state judiciary to the Legislature, the Ohio Capital Journal reported.

In Missouri, the secretary of state reviews ballot initiatives and prepares summaries to appear on the ballot. The incumbent, Ashcroft, wrote that a number of proposed abortion-rights initiatives would “allow for dangerous, unregulated, and unrestricted abortions.” He also used the expression, “right to life,” according to the Missouri Independent, another Phoenix affiliate.

A trial judge objected, and an intermediate state appeals court agreed, concluding, for example, that “the use of the term ‘right to life’ is simply not an impartial term.”

Anti-abortion efforts

Abortion opponents are availing themselves of the ballot as well. Iowa, for example, will have an initiative on the 2024 ballot to restrict abortion rights.

Anti-abortion activists are not giving up.

“The true lesson from last night’s loss is that Democrats are going to make abortion front and center throughout 2024 campaigns,” Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said in a written statement following the Ohio amendment’s passage and statehouse elections in which Virginia Democrats gained control of both chambers of the General Assembly, seen as a rebuke of Gov. Glenn Youngkin’s call for a 15-week abortion ban.

“The GOP consultant class needs to wake up. Candidates must put money and messaging toward countering the Democrats’ attacks or they will lose every time,” she added.

Correction: This story has been revised to correct attribution of quote from a legal brief erroneously attributed to the Florida Conference of Catholic Bishops. The quote, “Proposed Amendment hides from voters its sponsors’ true purpose: to codify unrestricted abortion as a fundamental right in Florida’s Constitution and allow abortions for virtually any reason, at any stage of the pregnancy,” actually was offered in a brief by Florida Voters Against Extremism.