Florida appeals a judge’s ruling on the financial impact statement on the abortion rights amendment

Woman laying on back in doctors office with a nurse giving an ultrasound.
APhoto from Creative Commons for WMNF News (2024).

By Jim Saunders and Dara Kam ©2024 The News Service of Florida

TALLAHASSEE — The state has appealed a Leon County circuit judge’s decision requiring changes to a “financial impact statement” that will appear on the November ballot with a proposed constitutional amendment aimed at ensuring abortion rights.

After announcing his decision during a hearing last week, Circuit Judge John Cooper on Monday issued a written ruling that said outdated information in the financial impact statement “renders it inaccurate, ambiguous, misleading, unclear and confusing.”

Hours later, the state filed a notice that was a first step in appealing Cooper’s decision to the 1st District Court of Appeal. As is common, the notice did not detail arguments that the state will make at the Tallahassee-based appeals court.

Under court rules, the state’s filing of the notice automatically triggered a stay of Cooper’s decision. But Cooper held a hearing Tuesday afternoon and vacated the stay. While it’s unclear how the 1st District Court of Appeal will proceed, Cooper’s move to vacate the stay could mean the financial impact statement would have to be redrafted within 15 days.

“This is a case that should point the way to allowing the people of the state of Florida to decide this issue. … What’s not acceptable is that they vote based on inaccurate, misleading information they’ve been fed,” Cooper said. “That’s not acceptable.”

The proposed constitutional amendment, which will appear on the November ballot as Amendment 4, says, in part, that 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.” It has drawn opposition from Gov. Ron DeSantis and other state Republican leaders.

Floridians Protecting Freedom, a political committee leading efforts to pass the amendment, filed the lawsuit about the financial impact statement in April after the state Supreme Court issued two major abortion rulings. One of the rulings cleared the way for the proposed constitutional amendment to go on the ballot.

The other ruling rejected a challenge to a 15-week abortion limit that lawmakers passed in 2022. That ruling also allowed a six-week abortion limit to take effect. DeSantis and the Legislature approved the six-week limit in 2023.

Financial impact statements appear with ballot initiatives to provide estimated effects of the measures on government revenues and the state budget. A state panel issued a financial impact statement for the abortion measure before the April 1 Supreme Court rulings.

That statement included caveats about litigation surrounding state abortion laws and concluded, “Because there are several possible outcomes related to this litigation that differ widely in their effects, the impact of the proposed amendment on state and local government revenues and costs, if any, cannot be determined.”

The lawsuit alleged that, in light of the Supreme Court rulings, the financial impact statement needed to be updated. But attorneys for the state have fought the lawsuit, in part arguing that the circuit court did not have jurisdiction over financial impact statements.

In a brief filed last month, the state contended that only the Florida Supreme Court could legally review the financial impact statement. What’s more, it said the Supreme Court in 2019 decided against issuing what are known as “advisory” opinions about financial impact statements.

But in his ruling Monday, Cooper rejected those arguments and said the current statement violates the Florida Constitution and state law “because it presents largely outdated information about the legality of abortion under statutes and litigation unrelated to Amendment 4.” Cooper required that the statement be redrafted within 15 days.

Floridians Protecting Freedom filed an emergency motion Monday evening to vacate the automatic stay, drawing opposition from the state. That led to the hearing Tuesday afternoon and Cooper’s decision to vacate the stay.

Margaret Good, an attorney for Floridians Protecting Freedom, pointed to the Florida Secretary of State’s website, which includes the financial impact statement Cooper found misleading. Leaving “that inaccurate and misleading information up for the voters” while the appeal advances is causing “irreparable harm,” Good, a former Democratic state representative, said.

“Misinformation is out there, and it needs to be rectified now in order to ensure that voters are getting accurate and intelligible information” as they research the ballot proposal, Good added.

But Daniel Bell, a lawyer in Attorney General Ashley Moody’s office, urged the judge to put his ruling on hold while the appeal plays out, noting that the 1st District Court of Appeal “routinely reverses” orders lifting automatic stays.

Cooper asked Bell if a stay would stop the state panel “from redrafting the disclosure statement to make it accurate.”

“Of course, it’s our position that statement is accurate,” Bell said, drawing the wrath of the judge.

Cooper noted that attorneys for the state “took no position” on whether the statement was accurate during a hearing last week, when he specifically asked about the issue.

“I do not think there can be an argument made that now, after the fact, when the final judgment has been entered, that somehow your client takes the position that is accurate when it clearly is not. It’s not accurate because it assesses financial impact on litigation that doesn’t exist. It assesses financial impact on a statute that does not exist,” Cooper said.

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