A state panel Monday waded back into questions about possible financial effects of a proposed constitutional amendment on abortion rights, with amendment opponents warning the measure would lead to costly litigation if it passes in November.
The panel, known as the Financial Impact Estimating Conference, spent more than five hours discussing how — or if — approval of the amendment could affect such things as education and health-care budgets. The panel will meet again July 8 to try to agree on a “financial impact statement,” which would appear on the ballot with the proposed constitutional amendment.
The ballot proposal, Amendment 4, seeks to enshrine abortion rights in the state Constitution. It 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.”
Financial impact statements usually draw little attention, but the statement for the abortion measure has spurred a court fight. The Financial Impact Estimating Conference approved a statement for the proposal in November, but that was before the Florida Supreme Court on April 1 issued a ruling that allowed a six-week abortion limit to take effect.
Floridians Protecting Freedom, a political committee leading efforts to pass the constitutional amendment, filed a lawsuit arguing that the November statement needed to be revised after the Supreme Court ruling.
While the case remains pending at the 1st District Court of Appeal, the estimating conference Monday discussed possible revisions to the statement. Panel member Chris Spencer, who represented Gov. Ron DeSantis, and groups opposing the amendment repeatedly pointed to potential litigation costs if the amendment passes.
As examples, they said they would expect lawsuits about how to define “healthcare provider” under the amendment and how the measure would affect a current law that requires parental consent before minors can have abortions.
Jason Gonzalez, an attorney for Protect Women Florida Action, an opponent of the amendment, said the measure could lead to more litigation than a 2016 constitutional amendment that allowed medical marijuana in Florida. The 2016 amendment has spun off years of lawsuits and administrative cases.
“That will happen, times probably 10, with this amendment,” Gonzalez told the panel. “There are multiple provisions that are undefined. … They will all be litigated. There are terms like viability that are not defined in the amendment, healthcare provider, health of the mother, these things are not defined. They will be litigated endlessly, and it will be of extraordinary cost to the state.”
But Michelle Morton, an American Civil Liberties Union of Florida attorney who represented supporters of the amendment, said the Florida Supreme Court has said potential lawsuit costs should not be included in financial impact statements.
“The court has been very clear, both now and in previous cases, that speculation about future litigation is not within the bounds of the financial impact statement,” Morton said.
Spencer, who recently was named executive director of the State Board of Administration after serving as DeSantis’ budget chief, acknowledged that it might not be possible to predict how much lawsuits will cost but said “we know it’s not zero.”
Panel member Amy Baker, coordinator of the Legislature’s Office of Economic & Demographic Research, agreed that the amendment would lead to lawsuits but said trying to address it in the statement is “not a slam dunk.”
“The court has been very clear, both now and in previous cases, that speculation about future litigation is not within the bounds of the financial impact statement.”Michelle Morton
When the panel drew up the November statement, it was uncertain about whether the six-week abortion limit would take effect. At the time, abortion-rights supporters were challenging a 2022 law that prevented abortions after 15 weeks of pregnancy. The Supreme Court in April upheld that law, also effectively allowing the six-week limit to begin May 1.
The November statement included caveats about the challenge to the abortion restrictions 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.”
An estimating conference analysis, however, indicated it is “probable” that the amendment would lead to cost savings in criminal-justice, education and health-and-human services programs. Among the factors is that the amendment would reduce the birth rate in the state.
