Florida’s Legal Showdown Over Viability Could Threaten Future Abortion Advocacy

Some experts worry that an attempt to save Florida’s abortion ballot measure could hamstring reproductive rights advocacy for decades to come.

Gavel hammer set on the base
The Florida Supreme Court will now decide whether the proposed amendment meets the standards for inclusion on the ballot. Envato

UPDATE, November 14, 2023: This article was updated with more comments.

Every single time that abortion has appeared on a ballot since the overturn of Roe v. Wade last year, voters have decided in favor of abortion rights. Thanks to this winning record, advocates have embraced ballot measures as one of the most direct paths to protecting or restoring abortion rights.

In Florida, a coalition known as Floridians Protecting Freedom, consisting of the ACLU of Florida, Florida Alliance of Planned Parenthood Affiliates, Florida Women’s Freedom Coalition, and other groups, hopes to get a constitutional amendment on the ballot in 2024. The amendment would have to capture 60 percent of the vote—a high bar—to succeed and become part of the state constitution.

Last month, the proposed amendment reached the threshold of 400,000 signatures required to get a state supreme court review of the language. But Republican Florida Attorney General Ashley Moody is attempting to block it and has asked the Florida Supreme Court to weigh in, arguing that the amendment is too vague. Specifically, Moody has taken issue with the amendment’s reliance on the concept of fetal viability.

Some patient advocates and medical providers tell Rewire News Group they worry that the resulting attempt to save the Florida ballot measure could come at the expense of abortion rights advocacy for decades to come.

The Florida amendment essentially seeks to restore Roe within the state. So what’s the problem? It comes down to what many see as a fatal flaw that doomed abortion rights from the moment the 1973 Roe decision was handed down: the slippery subject of viability.

The text of the proposed amendment 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 health-care provider.”

This hearkens back to the Supreme Court’s decision in Roe v. Wade, which held that states couldn’t interfere with abortion care in the first trimester of pregnancy, but could impose some health-based restrictions in the second trimester, and could ban abortion after the point of fetal viability, with exceptions in place for the life and health of the pregnant person.

“While Roe and Planned Parenthood v. Casey [a later case that narrowed the Roe standard] protected a limited right to abortion, they did nothing to ensure access,” said Erika Christensen of Patient Forward, an organization that works to secure access to abortion throughout pregnancy. “Further, they balanced the right to abortion against the state’s interest in pregnancy. This meant protecting the government’s right to deny abortion care and compel childbearing after a vague, ill-defined point decided by that court: the idea of potential fetal viability.”

“We had an opportunity with Dobbs to abandon the harmful parts of Roe and Casey we’ve been living under for 50 years,” she continued. “We are largely wasting that opportunity.”

In her initial brief to the Florida Supreme Court filed on October 31, Moody argues that the proposed constitutional amendment is an “effort to hoodwink the Florida electorate.” Specifically, she argues the ballot measure fails to meet a requirement for “clear and unambiguous language” thanks to the lack of definition of the terms “viability” and “health.”

As evidence, Moody points to a publication from the American College of Obstetricians and Gynecologists (ACOG), published shortly after the overturn of Roe, which states that “there is no single formally recognized clinical definition of ‘viability.’” The document goes on to explain two circumstances in which the term “viability” might be used by doctors:.

In the first, “viability” addresses whether a pregnancy is expected to continue developing normally … In the second, “viability” addresses whether a fetus might survive outside of the uterus.

Moody argues that many voters might believe viability to have the first meaning, not the second, which could lead to confusion over how far into pregnancy abortion would be allowed.

But in a response brief filed on Thursday evening, attorneys for ACOG argue that Moody’s use of ACOG guidance on viability is “inconsistent with that guidance.” The brief reads:

ACOG’s publication, ‘Facts Are Important: Understanding and Navigating Viability,’ states that the concept of viability should not be misused to limit access to essential reproductive health care. While viability is a nuanced determination that should be navigated by trained clinicians based on their experience, expertise and judgment, it should not be misused for political purposes.

While the brief does not take an explicit position on the ballot measure, some advocates are questioning why ACOG would intervene given that the viability language within the ballot measure would seem to directly contradict ACOG’s position: “ACOG strongly opposes policymakers defining viability or using viability as a basis to limit access to evidence-based care.”

When reached for comment about whether the organization supports the ballot measure, ACOG’s chief legal officer and general counsel Molly Meegan told Rewire News Group, “ACOG filed our amicus brief because it is critical that language such as the word ‘viability’ not be used as a political tool. We appreciate the efforts of advocates, including ACOG members and patients, across the country who are working to restore access to abortion. ACOG’s goal is to continue to work to ensure that all people can access abortion care where they need it, when they need it, and without legislative interference.”

ACOG’s position that viability shouldn’t be defined by legislators doesn’t necessarily conflict with the existence of a viability ban, said Greer Donley, an associate professor at the University of Pittsburgh School of Law. “ACOG’s position is that it’s up to a doctor to decide when a fetus is viable. That’s different from the legislature putting a number in the law.”

Viability isn’t the only term related to pregnancy and abortion that is inherently vague and opaque to the general public, Donley said, pointing to a recent study that found people’s personal definitions of the word “abortion” vary widely.

When it comes to the specific question before the Florida Supreme Court—whether the inclusion of the term “viability” makes a proposed constitutional amendment too vague to allow on a ballot—Donley said there’s a whole body of law related to the concept of ambiguity, and that it’s a spectrum.

“If the court was doing the proper thing—the consistent thing—they’d have to look at other cases where they’ve decided if a word was too ambiguous to be placed on a ballot,” she said. “I don’t think this rises to the level that average voters would be so confused that they wouldn’t know how to vote.”

The inclusion of viability language in ballot measures has been a subject of considerable debate with the abortion rights and reproductive justice movements. Last week’s success of an abortion rights ballot measure in Ohio was bittersweet for many organizers in part because of its inclusion of viability language very similar to that of the Florida initiative. Multiple sources told RNG that the inclusion of viability language was controversial within the coalition that worked to pass the amendment, and that some organizers wanted to delay the campaign another year to work out those and other issues.

In particular, many objected to advertisements for Issue 1 that touted the fact that the measure would maintain “sensible restrictions on abortion later in pregnancy.”

Organizers in other states are taking note of what happened in Ohio and attempting to head off a similar outcome. On Monday, Missouri Abortion Fund came out in opposition to the inclusion of viability language in ballot measure attempts there.

For advocates who themselves have had abortions later in pregnancy, this debate feels like yet another instance in which their entire movement has thrown them under the bus.

“Later abortion patient advocates have been sharing our experiences of living under abortion bans long before Dobbs,” Christensen said. “We were getting on planes to fly across the country [for care]—if we were ‘lucky’—long before Dobbs. We were getting shamed, delayed, and denied care long before Dobbs. And we’ve been experiencing this even in so-called ‘pro-abortion’ states which tout themselves as havens.”

Some medical providers agree. “The concept of viability should never be used to legislate the practice of medicine or interfere with an individual’s ability to make a decision about their own pregnancy,” the Society of Family Planning said in a statement to Rewire News Group. “The Society is opposed to the inclusion of viability limits or bans in laws or amendments about abortion, as this invitation for government to interfere in person-centered clinical decision making does not align with the nuanced, complex, science-based practice of medicine. Additionally, it negates the existence of and experience of people needing abortions later in pregnancy.”

Randi Gregory, vice president for political and legislative affairs at the National Institute for Reproductive Health, echoed that sentiment.

“It’s well past time to move beyond the Roe framework in order to secure abortion access for all people, especially those historically marginalized by policies that restricted reproductive health and rights,” Gregory said in a statement to RNG.

Donley, too, said that her thinking about whether there should be any legal restrictions on abortion has shifted significantly over the last several years.

“I have really changed my mind about whether we should have limits at all. I don’t think we should,” she said. However, she added that the broader abortion rights movement needs to get better at countering conservative disinformation around later abortion, like claims about abortions being provided “up to the moment of birth.”

“There are good answers to that, but I don’t think they’re out there enough,” Donley said. “We have to do the work of convincing the public that lines are unnecessary.”

Research also finds that exceptions to abortion bans—including health exceptions that would theoretically allow for abortion after viability—rarely work in practice, contributing to concerns that measures like those in Ohio and Florida could reinforce existing problems.

“We do not accept exceptions because we know that abortion bans are not vibes. They are laws that carry serious civil and criminal penalties,” Christensen said. “Few providers or the lawyers that advise them are willing to risk loss of license, fines, or even jail time, and with good reason. In practice, exceptions to bans work to soften political blowback and assuage guilt but do little to ensure meaningful access for the people affected by them.”

If pro-abortion advocates can’t stand up against these myths about abortions that happen at 24 weeks of pregnancy and beyond, Christensen added, “then I do not believe we have a leg to stand on when our opponents suggest them at 15 weeks … or six weeks.”

The Florida Supreme Court will now decide whether the proposed amendment meets the standards for inclusion on the ballot. The anti-abortion group Susan B. Anthony Pro-Life America has filed a request for oral argument in the case.