Gov. Ron DeSantis’ administration is threatening to criminally prosecute Florida television stations if they do not stop running a political advertisement featuring a brain cancer patient who supports a November ballot measure that would broaden access to abortion in Florida.
But nearly a week after the state warned TV stations to pull the ad, the commercial is still running, and attorneys representing a political committee sponsoring the abortion ballot measure have issued a defiant legal letter in which they call the administration’s effort an “unconstitutional state action.”
The head of the Federal Communications Commission on Tuesday also issued a statement calling the state’s efforts “dangerous” and said TV stations’ right to air political ads are “rooted in the First Amendment.”
“Threats against broadcast stations for airing content that conflicts with the government’s views are dangerous and undermine the fundamental principle of free speech,” FCC Chairwoman Jessica Rosenworcel said in a statement.
The feud stems from an Oct. 3 cease-and-desist letter the Florida Department of Health sent to Florida television stations over a political ad that features a woman named Caroline who was diagnosed with brain cancer two years ago while pregnant with her second child. In the ad, the woman says Florida’s six-week abortion ban would have prevented her from receiving a life-saving abortion.
John Wilson, the general counsel for the state agency, says the claims made by the woman are “categorically false” and that the message constitutes a “sanitary nuisance” that could put women’s health and lives at risk if it continues to be broadcasted.
The state agency’s letter is the latest example in which DeSantis’ administration has used taxpayer resources to defeat Amendment 4. In recent months, the governor has engaged in an all-out war against the abortion measure with the help of state agencies, which critics have accused of pushing the legal boundaries between campaign politics and state duties.
The cease-and-desist letter is drawing similar comparisons.
“The department cannot criminalize media outlets running political advertisements with which it disagrees,” attorneys with Floridians Protecting Freedom wrote in a letter to television stations last week. “The department’s letter is a flagrant abuse of power, and it should be rejected out of hand.”
If the advertisement was not taken down within 24 hours, Wilson said TV stations could face criminal prosecution, and noted that “creating, keeping, or maintaining a nuisance injurious to health is a second-degree misdemeanor” under state law.
“While your company enjoys the right to broadcast political advertisements under the First Amendment of the United States Constitution and Article I, section 4 of the Florida Constitution, that right does not include free rein to disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida,” Wilson wrote in a letter to TV stations.
But attorneys with Floridians Protecting Freedom, the political committee sponsoring Amendment 4, said the state’s letter is a “textbook example of government coercion that violates the First Amendment,” and maintain the woman’s statements in the advertisement are true.
“Simply put, the state of Florida cannot bar political advertisements that do not agree with the state’s own preferred narratives and characterizations,” attorneys representing Floridians Protecting Freedom wrote in the letter to television stations.
Florida abortion law at crux of disputeCaroline, the woman featured in the ad, makes an emotional plea to viewers as she describes receiving her terminal brain cancer diagnosis two years ago while pregnant with her second child.
“The doctors knew that if I did not end my pregnancy, I would lose my baby, I would lose my life, and my daughter would lose her mom,” Caroline said in the pro-Amendment 4 ad. “Florida has now banned abortion even in cases like mine. Amendment Four is gonna protect women like me.”
Caroline needed medical treatment to prolong her life, but that treatment would likely have harmed or killed the fetus, according to physician Shelly Hsiao-Ying Tien, who provided a sworn statement to attorneys representing Floridians Protecting Freedom that the group included in their letter to television stations.
Tien said the abortion was necessary to allow Caroline to continue treatment of her terminal cancer, but since it would not have saved her life it may have not qualified as an exemption under Florida’s strict abortion law.
“I would not have provided this abortion because it could be viewed as a crime to terminate Caroline’s pregnancy because the termination was not required to ‘save the pregnant woman’s life,’” Tien wrote. “While the termination was medically necessary because the cancer was terminal, the abortion would not have saved the patient’s life and therefore could be illegal under Florida law.”
But in the letter to TV stations, attorneys with the state cited a portion of Florida law that says women would be able to seek an abortion after six weeks in cases where it is necessary to save the pregnant woman’s life, and cited a law directing physicians to consider “preserving the woman’s life and health the overriding and superior concern.”
Mary Ziegler, a professor at the University of California, Davis School of Law, said that the primary issue is uncertainty over how to interpret the current law – which would make it unlikely that a patient in a similar situation to Caroline’s would be able to receive an abortion today.
“It’s a pattern when you have laws that are unclear and not a lot of guidance from the relevant legal authorities that physicians who know that they’d be facing serious criminal charges tend to err on the side of protecting themselves,” she said. “I think the most likely answer is that it probably wouldn’t have happened today.”
Florida’s current law bans abortion after the six-week gestational age — or six weeks from the last menstrual period — with few exceptions. Two physicians have to certify in writing that the abortion is necessary to save the woman’s life or avert a serious physical risk – or the individual has to provide evidence before the 15-week gestational age that the pregnancy is the result of rape, incest, or human trafficking.
Amendment 4 would protect access to abortion before viability, defined in Florida statutes as when a fetus’ life is “sustainable outside the womb,” and in cases where it’s “necessary to protect the patient’s health.”
The Florida Department of Health did not respond to a request seeking comment Tuesday. Nor did TV stations who were sent the cease and desist letter by the state agency.
According to the Floridians Protecting Freedom campaign, the ad was sent to stations across the state and their own media monitoring confirms that the ad is still running.
This story was originally published October 8, 2024, 6:27 PM.
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