Reality Check is a Herald series holding those in power to account and shining a light on their decisions. Have a suggestion for a future story? Email our journalists at [email protected].
Gov. Ron DeSantis and the Republican Party of Florida are highlighting a lawsuit in Michigan to argue that an amendment to expand abortion access in Florida could lead to taxpayer-funded abortions — a disputed claim that will appear on the ballot in a financial statement next to the amendment in November.
Lauren Brenzel, the campaign director for Floridians Protecting Freedom, the group behind Amendment 4, called the argument a “distraction” and a way to “sow confusion and terrify voters.”
“Our initiative is about ending Florida’s extreme abortion ban. We have a ban here that starts before many women even realize they’re pregnant, and whatever’s happening in Michigan has nothing to do with what’s happening in Florida,” Brenzel said. “The reality is we have no plan to sue for public funding for abortions.”
Florida will vote in November on Amendment 4, which would legalize abortion in the state before fetal viability or “when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.” It would undo Florida’s Heartbeat Protection Act, a six-week abortion limitation that DeSantis signed into law and went into effect on May 1, 2024.
The focus on the Michigan lawsuit is part of an ongoing campaign to defeat the Florida amendment, which has seen the DeSantis administration pour taxpayer money into TV ads and a state-sponsored website against the amendment.
“Amendment 4 is a Trojan horse …” DeSantis wrote on Oct. 1 on X next to an ad about the Michigan lawsuit. “If it passes, taxpayers may be forced to fund it.”
The ongoing lawsuit in Michigan, which was filed by the American Civil Liberties Union and the ACLU of Michigan in June, challenges a ban on using public funds for abortion services by arguing that the ban violates a 2022 amendment establishing residents’ right to abortion. The restrictions on public funding largely affect low-income residents who rely on Medicaid for healthcare.
A group campaigning against the amendment in Florida — Vote No on 4 — has made the prospect of taxpayer funded abortions one of five arguments against the amendment on their website. The Republican Party of Florida paid for an advertisement running on TV with a voiceover that says “it happened in Michigan, it will happen in Florida.”
The two groups argue that the “same lawyers” are involved in both states — although the same individuals are not. A local chapter of the ACLU, the ACLU of Florida, is one of the partners in Floridians Protecting Freedom — and is separate from the Michigan chapter.
The supporting group — Vote Yes on 4 — have included a note on their website saying Amendment 4 does not provide taxpayer funding for abortion.
“They might say that now, but they didn’t clarify that in their amendment,” said Taryn Fenske, a spokesperson for DeSantis. She said the Michigan amendment in 2022 did not mention that taxpayer funds may be used.
She called the amendment “broad and misleading” because it doesn’t have definitions of terms like “viability.” The proponents of Amendment 4 dispute this: Viability is defined in Florida statutes as “the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.”
“Voters won’t know the effect of what we’re voting on, causing years of litigation and legal uncertainty and again leading to lawsuits like they just filed in Michigan,” said Fenske.
The DeSantis administration pushed to include a contentious financial impact statement accompanying the amendment that repeats this claim. The statement on the ballot will read that there is “uncertainty about whether the amendment will require the state to subsidize abortions with public funds,” and that “litigation to resolve those and other uncertainties will result in additional costs.”
Experts weigh inLegal experts say that if the amendment passes, the interpretation of the measure — and the ironing out of these details — will ultimately fall to the Florida Legislature and Supreme Court.
Jonathan L. Marshfield, a professor of law at the University of Florida Levin College of Law, said sponsors of amendments in Florida are in a “damned if they do, damned if they don’t” situation, because of a Florida Supreme Court single subject rule mandating that proposed amendments only address one subject. Given these restrictions, he called Amendment 4 “quite detailed,” but said there are a lot of unknowns.
“The more you define the more you inevitably draw in other issues that make it harder to get through the pre-election clearance,” he said. “On the other hand the lack of definitions does mean that there’s going to be post-ratification litigation.”
Because of the single-subject rule, Marshfield said the Michigan amendment would have been “too robust” to pass a review by the Florida Supreme Court. Mary Ziegler, a professor at the University of California, Davis, School of Law who has written several books on abortion, said interpretation of the amendment will look different between the two states.
“Voters get to decide if Amendment 4 passes or not. They don’t get to decide how it’s interpreted. The body that gets to decide how it’s interpreted is the Florida Supreme Court, which is one of the most conservative state supreme courts in the country,” Ziegler said.
“Do I think that the Florida Supreme Court would interpret Amendment 4 to require taxpayer funding of abortion? If there’s even the slightest argument that it doesn’t, I mean, no.”
Laws regulating public funds and abortionsThe debate over whether or not public funds should be used for abortion goes back nearly half a century.
In 1977, Congress enacted the Hyde Amendment, which blocks individuals from using federal Medicaid funding for an abortion except in three circumstances: when necessary to save the mother’s life, avert a risk of serious physical harm or if the pregnancy is the result of rape or incest. But it does not restrict states from extending additional state funds to patients — and at least 17 states do so, according to the ACLU.
YWCA Kalamazoo, a non-profit organization in Michigan that provides low-income residents of Kalamazoo County with funds for reproductive health services, is the plaintiff in the ACLU lawsuit in Michigan. Representatives for the organization and for the ACLU of Michigan declined to comment for this article.
Florida law currently follows the Hyde Amendment rule that only allows residents to use public funds for abortion in three scenarios. Amendment 4, an “amendment to limit government interference with abortion,” does not mention the current restrictions on public funding.
“The idea that this is an initiative about anything but trying to end this abortion ban is really unbelievable and quite a distraction,” Brenzel said. “Nobody in the Yes on 4 coalition has even talked about this as a possible avenue.”
This story was originally published October 12, 2024, 5:30 AM.
Follow more of our reporting on Reality Check Miami-Dade County Miami-Dade cop in Tyreek Hill takedown cited non-existent law to cuff Dolphins player, video reveals September 25, 2024 4:40 PM Elections Donald Trump and Kamala Harris both say food costs too much. What can they do about it? September 20, 2024 4:52 PM See all stories Get unlimited digital access #ReadLocalTry 1 month for $1
CLAIM OFFER
Florida Politics
Lawyer who threatened Florida TV stations over abortion ad leaves Health Department job
October 12, 2024 5:41 PM
Politics
As Florida recovers from Hurricane Milton, Trump keeps his focus elsewhere
Updated October 12, 2024 9:41 AM
Politics
‘Very much a pragmatist.’ Maria Elvira Salazar threads a needle as she seeks reelection
Updated October 11, 2024 3:44 PM
Real-time updates and all local stories you want right in the palm of your hand.
Miami Herald App
Part of the McClatchy Media Networkbonustime
Copyright Commenting Policy Privacy PolicyCookie Preferences Your Privacy Choices Terms of Service