DeSantis administration pushes back in abortion ad fight

TALLAHASSEE – As Gov. Ron DeSantis and his allies continue to attack a ballot proposal aimed at enshrining abortion rights in the state Constitution, his administration pushed back in a legal battle about the state’s efforts to block a television ad supporting the measure.
Attorneys for the administration on Tuesday filed a document accusing the Floridians Protecting Freedom political committee, which is sponsoring what appears as Amendment 4 on the November ballot, of “intentionally spreading false factual information” about a state law restricting abortions after six weeks of pregnancy.
Floridians Protecting Freedom filed the federal lawsuit after the state Department of Health sent threatening letters to television stations running the commercial, which the department said posed a public “health nuisance.”
The lawsuit alleged the letters, signed by former Department of Health General Counsel John Wilson, violated the First Amendment, and Chief U.S. District Judge Mark Walker last week granted the committee’s request for a temporary restraining order blocking state officials from taking any action against broadcasters airing the ad. Walker will hold a hearing on Tuesday in the case.
In a document filed Tuesday opposing the committee’s request for a preliminary injunction, lawyers for Department of Health Secretary Joseph Ladapo, who is the state surgeon general, argued that the ad contains “objectively false factual information” because the six-week law includes exceptions when the life of a pregnant woman is at risk.
“The Constitution does not grant individuals a right to spread false information about the availability of lifesaving medical services (abortion). There is no right, for instance, to air commercials falsely claiming that all of a city’s hospitals are closed, or that 911 services are down. Yet Floridians Protecting Freedom, Inc. claims that it has just such a right because the false information that it is spreading pertains to abortion, and an abortion referendum is taking place in Florida this November. Not so,” wrote attorneys with the Washington, D.C.-based Cooper & Kirk firm, which is representing the administration.
The controversial ad, dubbed “Caroline,” tells the story of a woman who was diagnosed with brain cancer when she was 18 weeks pregnant. Doctors told the woman they could not treat her with chemotherapy or radiation while pregnant, so she had an abortion.
The woman in the ad says that “doctors knew if I did not end my pregnancy . . . I would lose my life” and that “Florida has now banned abortion even in cases like mine.”
But the administration’s lawyers wrote that the “statute is crystal clear. If an abortion is necessary to save a woman’s life, she may obtain the procedure.”
The Department of Health last week signed a $200,000 contract with Cooper & Kirk – a firm frequently enlisted by DeSantis’ administration to defend the state in federal litigation – for representation in the abortion lawsuit, according to information posted on a state website.
Amid the lawsuit, Wilson resigned as general counsel of the department, according to an affidavit filed Monday. Wilson’s affidavit said he did not author the Oct. 3 letters to television stations bearing his signature and that he was “directed” to send the letters by DeSantis’ general counsel, Ryan Newman, and a deputy general counsel, Jed Doty.
Wilson resigned on Oct. 10 “in lieu of complying with directives from Newman and Doty to send out further correspondence to the media outlets,” the affidavit said.
In addition to the letters, DeSantis and his administration have taken unprecedented steps to oppose the abortion proposal and a ballot measure, known as Amendment 3, which would allow the recreational use of marijuana.
The state is paying for public service announcements urging a “no” vote on the abortion measure and launched a webpage warning against it. DeSantis, in his official capacity as governor, this week made appearances to campaign against the proposal with anti-abortion doctors and other opponents.
Also, the Florida Department of State’s Office of Election Crimes and Security released a 388-page report last week making fraud accusations against some workers who collected petition signatures for the abortion initiative. The report also accused Floridians Protecting Freedom of illegally paying workers based on the number of signatures they collected.
Opponents of the abortion measure filed lawsuits last week seeking to invalidate the proposed amendment, relying heavily on the state’s report.
The DeSantis administration document filed Tuesday in the federal lawsuit also argued that Floridians Protecting Freedom lacks “standing” to pursue the case because it won’t suffer any “actual or imminent” harm. The document also disputed whether any TV station had pulled the ad, although the lawsuit alleged that one station had stopped airing it.
The state also attacked Florida Protecting Freedom’s assertion that the threats “chilled” the committee’s speech, saying that “chilled speech” amounts to self-censorship.
The committee “cannot show a self-censorship injury here, however, because it is not choosing to self-censor,” the state’s filing said.
Supporters of the proposal on Tuesday held a news conference with doctors who said that the six-week abortion restriction is creating havoc for obstetricians and gynecologists, who are having to consult with lawyers and ethics panels before providing emergency care to pregnant women. Physicians face heavy fines or jail if they violate the law, which requires two physicians to “certify in writing that, in reasonable medical judgment,” an abortion after six weeks is necessary. The law also allows an abortion if a physician “certifies in writing” the medical necessity for an emergency abortion to save the pregnant woman’s life and another doctor is unavailable.
“Patients are not being provided care until they are on the brink of death, even if we put them at risk of life-threatening infection … even if their ability to have children in the future is in jeopardy,” Tampa obstetrician and gynecologist Samantha Baer told reporters Tuesday.