No, a Florida ballot measure wouldn’t ‘mandate abortion up to birth,’ as Gov. Ron DeSantis said

Samantha Putterman
·6 min read
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Florida Gov. Ron DeSantis smiles as he announces a record $2.2 billion expenditure for the Florida Agency for Persons with Disabilities at the Els Center of Excellence in Jupiter, Fla., on Monday, April 29, 2024.
Florida Gov. Ron DeSantis smiles as he announces a record $2.2 billion expenditure for the Florida Agency for Persons with Disabilities at the Els Center of Excellence in Jupiter, Fla., on Monday, April 29, 2024.
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Ron DeSantis

Statement: Florida’s Amendment 4 "will mandate abortion until the moment of birth.”

As Floridians prepare to vote on a November ballot measure that would enshrine abortion access in the state's constitution, Florida’s Republican Gov. Ron DeSantis declared his opposition to the effort.DeSantis claimed the ballot initiative, which President Joe Biden supports, is far more extreme than supporters are letting on.

"I hear that Joe Biden is on his way to Florida this afternoon," DeSantis said during an April 23 news conference ahead of the president’s speech in Tampa. "And now he’s coming down to try to support a constitutional amendment that will mandate abortion until the moment of birth."

But DeSantis’ statement about the amendment is undermined by the initiative's language.

If approved by at least 60% of voters, the measure would limit 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.

In the U.S., less than 1% of abortions are performed after 21 weeks and typically involve an emergency or fatal fetal anomaly. Florida’s upcoming six-week abortion ban, which takes effect May 1, includes an exception for the pregnant woman’s life. If the constitutional amendment passes, Florida’s Legislature can further shape what kind of health exceptions would qualify.

What the amendment says on abortion limits

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, Bryan Griffin, a spokesperson for the governor’s office, wrote, "Where does it define who gets to define 'viability'?"

Health care providers 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," said Louis Virelli, a Stetson University College of Law professor.

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, wrote to PolitiFact in an email. "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 mother."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."

Florida’s upcoming six-week abortion ban, which DeSantis signed, allows later abortions when doctors certify that the procedure would avert "serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition."

Although this is more restrictive than the amendment’s broader language about protecting the patient’s health, the Legislature would still be able to shape it further.

PolitiFact's ruling

DeSantis said Florida’s abortion amendment "will mandate abortion until the moment of birth."

The amendment does not do this. The measure allows abortion before fetal viability, typically around 24 weeks of pregnancy, or when necessary after that period to protect the health of the pregnant woman. In the U.S., less than 1% of abortions in the U.S. are performed after 21 weeks and typically involve a health emergency or fatal fetal anomaly.Existing Florida law defines viability as "the stage of fetal development when the life of a fetus is sustainable outside the womb through standard medical measures."  We rate DeSantis’ statement False.

Our sources

This article originally appeared on Austin American-Statesman: Florida Gov. DeSantis falsely claims ballot measure would mandate abortions