A Leon County circuit judge on Wednesday ruled a “financial impact statement” that would accompany a proposed constitutional amendment about abortion rights needs to be revised, finding that the statement is “inaccurate, ambiguous, misleading, unclear and confusing.”
Judge John Cooper ruled from the bench after hearing arguments in a lawsuit filed by the Floridians Protecting Freedom political committee, which has sponsored what will appear as Amendment 4 on the November ballot. The proposed amendment seeks to ensure abortion rights.
Financial impact statements appear with ballot initiatives to provide estimated effects of measures on government revenues and the state budget.
A state panel, known as the Financial Impact Estimating Conference, issued a financial impact statement for the abortion measure before two major Florida Supreme Court rulings on April 1 about abortion issues.
The 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 Supreme Court on April 1 rejected a challenge to a 15-week abortion limit that lawmakers passed in 2022. That ruling allowed a six-week abortion limit, approved by Gov. Ron DeSantis and the Legislature last year, to go into effect May 1. The court on April 1 also decided that the abortion rights proposal could go on the November ballot.
Margaret Good, an attorney who represents the plaintiffs, argued Wednesday that the financial impact statement must be rewritten because it provides “outdated information about the legality of abortion.”
“It states that financial impact cannot be determined, when now it can,” Good, a former Democratic state representative, told Cooper. The American Civil Liberties Union of Florida also represents the plaintiffs.
The statement says, in part, “If the Court upholds the 2022 law, a 2023 law further reducing the 15 weeks to 6 weeks will take effect 30 days later. This could lead to additional litigation.”
The discussion in the statement about potential litigation “is completely speculative” and is unrelated to the ballot proposal, Good argued.
“It’s the plaintiff’s right not that we get the amendment passed but that a clear and accurate amendment ends up in front of the voters, and this financial impact statement impedes the ability of the voters to understand what they are voting on,” she said.
The Financial Impact Estimating Conference released the statement in the fall after conducting an analysis of a series of factors. One part of the analysis, which is not shown in the statement, found "it is probable that there would be a cost savings" to the state if the constitutional amendment is passed. The “magnitude of those savings” depend on whether the 15-week or six-week restrictions are in place, the analysis said.
Cooper said Wednesday the law restricting abortions after six weeks “is in existence” and the state panel “has held that that’s a net positive impact.”
“And so a fiscal statement that talks about the litigation, whether or not 15 (weeks) is effective, ‘we don’t know if the 15 weeks is effective or not, we don’t know if the six weeks is effective or not.’ … All of that, it seems to me, is inaccurate and now misleading,” the judge said.
Cooper said he would not specify how the panel should rewrite the statement.
“They’ve already done a complete analysis of all the issues in front of them,” he said. “I’m not telling them what words to write. I’m not telling them what analysis to perform. I’m just saying it needs to be revised, consistent with the circumstances on the ground today, which is the six-week law we all know is the law as I speak now.”
Cooper gave lawyers for the defendants, who include members of the Financial Impact Estimating Conference, an opportunity to “make the argument that the financial impact statement is accurate and correct and not misleading.” None of the attorneys accepted the offer.
Cooper has moved quickly in handling the lawsuit because county supervisors of elections can begin working on genera election ballots on Aug. 29. Mail-in ballots will start being sent to voters in September.
The lawsuit also alleged that Florida ballots in the past have not followed state law requiring that they “separately contain” financial impact statements, and asked Cooper to require that the statement for Amendment 4 be offset “through italics, asterisks, headings, and/or other devices.”
But Cooper said he lacked such authority and dismissed that part of the lawsuit.
Lawyers for Secretary of State Cord Byrd argued that the circuit court does not have jurisdiction over financial impact statements.
A brief filed last month said 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.
Cooper sparred with Daniel Bell, a lawyer in Attorney General Ashley Moody’s office who represents the state, over the issue Wednesday.
“If your argument is correct, there is no way to expect the statutory requirement that the financial disclosure be accurate and not misleading. It could say that Judge Cooper will pay for any cost out of his pocket and that could go on the ballot. Of course, that would never happen,” Cooper said.
Bell agreed that such a scenario would not occur.
“What I would say is that there are lots of important questions that are not judicially reviewable,” Bell said.
Floridians Protecting Freedom began the drive last year to pass the constitutional amendment after the six-week abortion limit was approved. The proposed amendment says “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.”
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