DeSantis misleads while taking a swipe at Florida abortion amendment

MILWAUKEE — In a breakfast address to home state Republican delegates today, Florida Gov. Ron DeSantis criticized two constitutional amendments that Florida voters will vote on later this year, one on abortion and the other on recreational marijuana.

But DeSantis mischaracterized the reach of the abortion measure.

If approved by at least 60% of voters, the measure would restrict prohibitions on abortion before fetal viability — typically considered to be around 24 weeks of pregnancy — or when necessary to protect the pregnant woman’s health. A full-term pregnancy is around 40 weeks.

At the breakfast, DeSantis said Amendment 4 would allow “abortion all the way up to the moment of birth.”

PolitiFact fact-checked DeSantis when he said it in April and rated it False, citing the initiative’s language.

The summary for Amendment 4, titled, “Amendment to Limit Government Interference with Abortion,” 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.”

Responding to PolitiFact’s questions in April, Bryan Griffin, a spokesperson for the governor’s office, wrote, “Where does it define who gets to define ‘viability?’”

Health care providers typically place fetal viability between 22 and 25 weeks of pregnancy. Neonatal survival rates in that time range vary and depend on the size and health of the fetus, the pregnant woman’s health and the health care facility.

Although the amendment doesn’t define viability, Florida Statute 390.011 does. It says viability is “the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures.” The amendment would not change this definition.

“It is not true that the amendment protects the right to an abortion up until the moment of birth. It only does so when a woman’s health is in danger,” Louis Virelli, a Stetson University College of Law professor, previously told PolitiFact.

He said the amendment reinstates the restrictions of Roe v. Wade, the 1973 Supreme Court ruling that provided federally protected abortion access until a fetus is viable, in Florida. The Supreme Court in 2022 overturned Roe when it ruled in Dobbs v. Jackson Women’s Health Organization that states should set laws on abortion access.

“Viability is a well-known medical term that marks the point at which a fetus is able to survive outside the womb,” Caroline Mala Corbin, a University of Miami law professor, told PolitiFact in April. “Might the courts interpret ‘protecting the patient’s health’ so broadly as to essentially make abortion available until birth? Of course not.”

More than 90% of abortions take place in the first trimester, or up until around 13 weeks of pregnancy, according to U.S. Centers for Disease Control and Prevention data. Abortions later in pregnancy are rare and often happen because of severe fetal anomalies or health risks to the pregnant woman.

”It’s also misleading because physicians, if anything, have been very reluctant to perform abortions in health emergencies that are clearly justified under state statutes for fear of liability,” said Mary Ziegler, an abortion historian and law professor at University of California, Davis. “The terms are ambiguous, but who’s going to be interpreting that? The Florida Supreme Court and the conservative legislature. To think that they will say this is abortion to birth, that’s not going to happen.”