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Florida’s Amendment 4 aims to expand abortion rights. It is very short — a single paragraph. And in a recent ad, its opponents said that’s a "dangerous" thing.
"Unlike other amendments, Amendment 4 has no definitions," the narrator said in a Vote No on 4 ad that aired during the Sept. 10 presidential debate. "Without definitions these words can mean almost anything."
The ad highlighted the words, "viability," "patient’s health" and "health care provider" as its problematically undefined terms.
"Unlike other amendments, Amendment 4 has no definitions," the narrator said. "Without definitions, these words can mean almost anything."
Is Amendment 4’s brevity really "unlike other amendments," and can those words mean anything without being defined in the ballot measure?
The ad’s claim is misleading.
It’s not unusual for ballot measures to lack definitions, and Florida’s law doesn’t require it. Voters will consider six initiatives on the Florida ballot this year, and five don’t offer definitions. The Legislature wrote four of them; Floridians led Amendment 4.
Another citizen-led proposal to legalize recreational marijuana, Amendment 3, includes multiple definitions.
How certain words in Amendment 4 will ultimately be defined is unclear. But that’s also not unusual for ballot measures, and some of the words the ad pointed to as examples have established state interpretations.
"There is a legitimate argument that greater precision would be better," said Ilya Somin, a George Mason University law professor. "But the lack of listed definitions is not a reason to think Amendment 4 is infinitely flexible or has no limits to the scope of rights it creates."
Any perceived ambiguity could raise legal challenges that leave the final say with courts. Judges base interpretations on existing legal definitions or, absent that, their ordinary English meaning, experts said, unless an unusual technical meaning was intended.
"Most laws have no built-in definitions. That doesn’t mean the words they use have no limitation," Somin said. "Words like ‘abortion,’ ‘health care provider,’ and so on all have understood meanings in ordinary usage, so they are not infinitely flexible."
What may be up for interpretation in Amendment 4?
Amendment 4’s formal title is "Amendment to Limit Government Interference with Abortion." Its 49-word summary 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."
The amendment would replace Florida’s six-week ban by essentially reinstating the restrictions of Roe v. Wade, the overturned 1973 Supreme Court ruling that provided federally protected abortion access until a fetus is viable.
Vote No on 4 spokesperson Taryn Fenske told PolitiFact that the line "no law shall prohibit, penalize, delay or restrict abortion" would hamstring Florida lawmakers from clarifying the measure. And without spelling out "viability," "patient’s health" and "health care provider," the words could mean almost anything, Fenske said.
Mo Jazil, a constitutional lawyer based in Tallahassee and counsel to the Vote No on 4 campaign, said courts will be "gatekeepers, and they will have a lot of leeway."
"My concern is there's no language — there's nothing to tether their analysis to," he said. "You have these vague terms with no tethers, no guideposts. So, if you draw the right judge, you can get to the conclusion that the ad is suggesting, or you can get to an unexpected conclusion."
Keisha Mulfort, American Civil Liberties Union of Florida senior communications strategist, said the language reflects terms that are well-defined in state law and widely understood. Yes on 4 is a coalition of groups, including Planned Parenthood and the ACLU of Florida, trying to expand abortion access.
"It’s important to understand that constitutional amendments are meant to set broad principles within the state constitution, not provide detailed legal regulations," Mulfort said. "That's what statutory laws are for."
Amendment 4 is "no different" from other measures that "trusted the legal system to apply existing definitions and standards in a reasonable and measured way," she said.
More definitions could have opened the door to more legal challenges, she said.
What is the precedent for definitions?
Vote No on 4 sent seven examples of ballot measures with definitions, including this year’s marijuana amendment and measures from the 1990s, early 2000s, 2016 and 2018.
"Many recent amendments have had extensive definitions: gambling, gill nets, medical marijuana, minimum wage, recreational marijuana, smoking, etc.," said Bob Jarvis, a Nova Southeastern University law professor.
PolitiFact reviewed past Florida ballot initiatives over several cycles and found many contained definitions, but others didn’t.
Definitions are not required in state constitutional amendments, as long as the amendments are clear to voters; the Florida Supreme Court ruled Amendment 4 was. Many of Florida's 144 constitutional amendments do not include definitions.
The Legislature and courts can shape an amendment’s scope without embedded definitions.
After Florida voters approved a 2018 ballot measure to restore voting rights to felons, for instance, the Republican-led Legislature passed a law requiring felons pay off all court fines and fees before they could vote, which undermined the effort.
Courts often play a role. For example, a citizen-led initiative in 2004 provided patients the right to know about adverse medical incidents. The measure, which voters approved — included definitions — but faced legal challenges and ended up at the Florida Supreme Court.
Experts weigh what’s clear, what’s not
Legal experts agreed that courts will likely have a central role in applying the amendment if it passes, but they were mixed on how that could play out.
Lacking definitions leaves some things unclear, such as who is considered a health care provider and what would count as protecting a "patient’s health," said Kermit Roosevelt, a University of Pennsylvania law professor. But courts would resolve those questions, he said.
"It would not lead to an anything-goes situation," Roosevelt said. "It would lead to the same situation as if the terms were defined; we just don’t know what the definitions will be before that happens."
Jarvis, from Nova Southeastern, was less sure.
"I think the lack of definitions was a deliberate strategy on the part of the proponents to make the amendment mean whatever the voter wanted it to mean, thereby increasing its chances of passing," he said. "Personally, although I am pro-choice, I think it was a mistake, because it opens the door to all sorts of mischief by the courts and the Legislature."
Eugene Volokh, a University of California, Los Angeles, law professor, said some terms are broad but seem reasonably understandable.
"The term ‘health care provider’ would likely include doctors and nurses and perhaps some others, as other existing statutes already define it," Volokh said. "There might be some uncertainty about the edges, but on balance it should be pretty clear."
The term "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." Fetal viability is widely considered to be around 24 weeks of pregnancy by doctors and health institutions. Neonatal survival rates around this point vary depending on the fetus’s size and health, the pregnant woman’s health and the health care facility.
Although the amendment doesn’t define "healthcare provider," legal experts have told PolitiFact that it wouldn’t allow unlicensed people to determine whether a patient qualifies for a health risk exception after viability, and said such claims ignore Florida’s health and medicine rules. Florida doctors are regulated by the state’s Board of Medicine, and must follow medical ethics and standards of practice. Reproductive health physicians told us they wouldn’t provide an abortion after fetal viability until they assessed the patient personally.
Fenske, from Vote No on 4, said the amendment’s lack of definition for the "patient’s health" exception could lead to "undefined" health care providers determining whether a particular health concern or complaint can justify an abortion during any month of pregnancy, "regardless of the nature or severity of the condition."
"There is little doubt that a result of Amendment 4 would be abortion clinics and others who assert themselves as the patient’s ‘health care provider,’ " Fenske said.
Dr. Cecilia Grande, an OB-GYN in Miami, said it’s disheartening to see advertisements that say the amendment would allow medical malpractice.
"For 51 years, we had the exact same law. So, it's not true to say that the amendment will open the door to anything irresponsible in the medical field," Grande said in a Sept. 18 press call in support of Amendment 4. "Each provider of each specialty has a scope of practice, and if we practice outside that scope, we can lose our license."
Our ruling
An anti-Amendment 4 ad in Florida says, "Unlike other amendments, Amendment 4 has no definitions. … Without definitions these words can mean almost anything."
The amendment is one of five initiatives on the state’s ballot that doesn’t include definitions. Even though many initiatives in recent years have added definitions, Florida law doesn’t require it.
Legal experts agreed that courts would likely clarify some terms should the amendment pass. Some said this could lead to broad interpretations of what a "health care provider" or "patient’s health" is, while other legal experts said these are well-defined.
The ad makes it appear that the amendment’s wording would result in the terms to mean "almost anything." But many of these terms will have a starting point in definitions existing in Florida law, and courts will ultimately decide any definition’s parameters.
We rate this ad Mostly False.
Sources
- YouTube, No on 4, "Warning Signs," Sept. 10, 2024
- Florida Division of Elections, Amendment 4 text
- Florida Division of Elections, Initiatives / Amendments / Revisions Database, Accessed Sept. 18, 2024
- Florida Legislature, Chapter 390 TERMINATION OF PREGNANCIES, Accessed Sept. 18, 2024
- Florida Legislature, The Florida Constitution, Accessed Sept. 18, 2024
- PolitiFact, No, a Florida ballot measure wouldn’t ‘mandate abortion up to birth,’ as Gov. Ron DeSantis said, April 30, 2024
- PolitiFact, If Florida’s abortion rights amendment passes, courts will weigh parental consent question, May 1, 2024
- PolitiFact, Florida abortion amendment wouldn’t let tattoo artists, receptionists decide health risk exceptions, May 10, 2024
- CBS News, Florida Supreme Court clears the way for abortion ballot initiative while upholding 15-week abortion ban, April 1, 2024
- The New York Times, How Republicans Undermined Ex-Felon Voting Rights in Florida, Updated April 30, 2021
- State University System of Florida, Risk Rx The Florida Supreme Court Rules on Amendment 7, 2008
- Email and Phone interview, Taryn Fenske, spokesperson for No on 4 campaign, Sept. 16-18, 2024
- Email interview, Keisha Mulfort, senior communications strategist at the ACLU of Florida, Sept. 18, 2024
- Email interview, Bob Jarvis, Nova Southeastern University law professor, Sept. 17, 2024
- Email interview, Ciara Torres-Spelliscy, professor of law at Stetson University, Sept. 18, 2024
- Email interview, Ilya Somin, law professor at George Mason University, Sept. 18, 2024
- Email interview, Kermit Roosevelt, University of Pennsylvania law professor, Sept. 18, 2024
- Email interview, Eugene Volokh, law professor at the University of California, Los Angeles, Sept. 18, 2024
- Phone interview, Mo Jazil, constitutional lawyer in Tallahassee, Sept. 19, 2024
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