Panel decides abortion-rights amendment would increase litigation costs for FL

Amy Baker, coordinator of Florida Economic and Demographic Research, and Chris Spencer, executive director of the State Board of Administration, participate in a financial impact estimating conference meeting in Tallahassee on July 15, 2024. (Screenshot via Florida Channel)

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Panelists appointed by Gov. Ron DeSantis and other political opponents of the proposed abortion-rights amendment pushed an administrative committee to abandon precedent and write an estimate boosting the potential cost to taxpayers should the amendment pass in November.

During a meeting of the state Financial Impact Estimating Conference that stretched for 12 hours Monday, those panel members outvoted Amy Baker, coordinator of the Office of Economic and Demographic Research, who chairs the conference, finally concluding Amendment 4 would “negatively impact the state budget” by sparking litigation over matters including whether the state would have to use Medicaid money to pay for procedures.

DeSantis’ appointee to the panel, Chris Spencer, and House Speaker Paul Renner’s appointee, Rachel Greszler, clashed with Baker over whether the panel should consider the costs of hypothetical court cases over whether the amendment would obligate taxpayers to finance abortion and other points of dispute, including the birth rate should the amendment pass.

Baker, who has been in her position since 2004, said the panel traditionally has not factored the uncertain outcome of hypothetical litigation into financial impact statements. Baker said multiple times that the panel was straying from neutrality but was outvoted 3-1 on numerous choices the group made, with Azhar Khan, staff director of the Senate Committee on Finance and Tax, filling out the majority.

Baker didn’t sign the draft.

The outcome amounted to “a dirty trick to mislead voters,” said Lauren Brenzel, campaign director for Yes on 4.

“Floridians want government out of their exam rooms because politicians are never more qualified to make personal health care decisions than women and their doctors,” Brenzel wrote in a news release. “Florida voters will see through this politically desperate attempt to mislead their vote choice.”

The language would appear with a summary of what the amendment would do on ballots presented to voters during the November general election. All proposed state constitutional amendments undergo a similar process.

‘Level of speculation’

Michelle Morton, an attorney with the Florida ACLU, argued the panel illegitimately inflated the fiscal impact.

“How is that informing voters of the probable financial impact of this amendment? This level of speculation is unlawful and, in the case of coverage for medically necessary abortions for low-income patients, the supposed increased costs illustrate how far we are from the usual financial analysis of probable budgetary impacts,” Morton said during the meeting.

The entire process of the financial impact estimating conference for Amendment 4, which would prevent state impediments to abortions up to fetal viability if it gets 60% approval from voters, was usually fraught. The panel had already met twice but deadlocked during both meetings. The final meeting on Monday lasted 12 hours.

The panel’s job was to figure an amendment’s “probable” financial impact, meaning new budgetary obligations that would be required under the existing statutes. Estimating the costs of litigation would stray from that obligation, Baker argued, and might impel the Florida Supreme Court to reject the estimate.

Spencer, executive director of the State Board of Administration and DeSantis’ former budget director, and Greszler, installed by House Speaker Paul Renner and who previously worked for the Heritage Foundation, a conservative activist group that provided data for the conference, pushed to factor in potential litigation. Senate President Kathleen Passidomo, who appointed Khan, is also anti-abortion.

“There’s a real outcome here that the state could be forced to pay 100% of the costs of abortions every year, tens of thousands of them, that they’re not currently paying for, and I think that’s something material enough that it needs to be considered,” Spencer said. He noted pending litigation in Michigan over a push for Medicaid-funded abortions for people with low incomes.

Under existing law, Florida allows Medicaid to pay for abortions only in instances of life endangerment, rape, and incest. The cost of wide-sweeping Medicaid-funded abortions could only be incurred if a similar lawsuit is filed in Florida and is won. Baker argued the outcome was far too speculative to take into account.

A state trial judge overturned an earlier economic-impact forecast at the urging of Floridians Protecting Freedom, the amendment sponsor, on the theory that enforcement beginning on May 1 of the state’s six-week ban had rendered that assessment inaccurate. The panel did not include data on the effect of the six-week ban because it is too new to provide insight into its eventual costs.

The group decided, without consensus, on the following wording for the statement voters will read:

“The proposed amendment would result in significantly more abortions and fewer live births per year in Florida. The increase in abortions could be even greater if the amendment invalidates laws requiring parental consent before minors undergo abortions and those ensuring only licensed physicians perform abortions. There is also uncertainty about whether the amendment will require the state to subsidize abortions with public funds. Litigation to resolve those and other uncertainties will result in additional costs to the state government and state courts that will negatively impact the state budget. An increase in abortions may negatively affect the growth of state and local revenues over time. Because the fiscal impact of increased abortions on state and local revenues and costs cannot be estimated with precision, the total impact of the proposed amendment is indeterminate.”

Partisanship

Morton, of the ACLU, took note as the day began of the unusual partisan cast of the proceedings.

“I understand that this issue creates passionate debate. It’s also clear that the government opposes this amendment, which is predictable,” Morton said to the committee members.

“Amendment 4 would reverse the criminalization of abortion, which the government just adopted. But you’re not part of that debate, you’re informing voters of the probable direct budgetary impact of the amendment so they can consider the financial impact of their vote, that’s it.”

Members of the panel used the same arguments that Attorney General Ashley Moody and other opponents of the amendment have used in court to argue in favor of abortion bans, Morton said.

The group struggled to agree about whether to consider long-term or short-term budgeting and where to draw the line on what costs and revenues the amendment would incur.

One bone of contention involved the abortion rate should the amendment pass. The three political appointees wanted to include an estimate of around 48,000 in the interest of making the statement as clear as possible about the stakes. The final language suggests only that there would be “significantly more abortions.”

State records show that some 84,052 abortions were conducted in Florida during 2023.

The document cites 18 specific laws that the majority of the panel believed could be challenged if the amendment passes. They include controls on record keeping at abortion clinics, disposal of fetal remains, abortion methods, and protecting hospitals that refuse to perform abortions.

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