Column: Inside the abortion case that prompted a federal judge to call Florida officials ‘stupid’

“To keep it simple for the State of Florida: it’s the First Amendment, stupid.”

This warning from federal Judge Mark Walker of Tallahassee, Fla., to Gov. Ron DeSantis and his quack state surgeon general, Joseph Ladapo, may not be the most scathing denunciation of a litigant by a judge in judicial history, but it will do for now as a contemporary standard.

The issue before Walker, an Obama appointee, involves a letter sent out under the names of DeSantis and Ladapo threatening Florida television stations with criminal prosecution for airing pro-abortion-rights commercials.

Specifically, the ad in question advocated for a measure on the November ballot, Amendment 4, that would roll back the state’s stringent antiabortion law. It’s part of a series of such ads placed by Floridians for Protecting Freedom, an abortion rights group.

The state’s letter advised TV stations that their 1st Amendment rights don’t give them “free rein to disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida.”

That’s just wrong, Walker wrote.

“The state has crossed the line from advocating against Amendment 4 to censoring speech” by threatening broadcasters with prosecution. On Thursday, he issued a temporary restraining order blocking the state from taking “any further actions to coerce, threaten, or [suggest] repercussions” against any TV stations or anyone else for running the commercial. He scheduled a hearing for Oct. 29 on whether to upgrade the restraining order into a permanent injunction.

Walker’s order is one of numerous examples of pushback against right-wing policymaking in red states. Under DeSantis, Florida has been a launching pad for goonishly malevolent assaults on the teaching of history in public schools, along with library bans targeting books with LGBTQ+ themes and addressing other important topics such as racism.

Most of the culture-war laws DeSantis promoted and signed as part of his self-proclaimed “war on wokeness” have been overturned or pared way back by judges.

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Six major publishers, five prominent authors and others have sued to have Florida’s book-banning law declared unconstitutional; as with the antiabortion state action, the book-banning law threatens school librarians with felony charges for failing to remove books purportedly subject to the law’s ambiguous definitions of what’s impermissible.

The antiabortion law DeSantis signed in 2023 is one of the most stringent in the nation and placed Florida in the forefront of Southern states hostile to women’s reproductive rights. It bans abortions after six weeks of pregnancy, which is often before a woman even knows she’s pregnant; prohibits state Medicaid coverage of abortion care; and saddles patients with burdensome obstacles and doctors with unnecessary regulations.

There were hopes in some quarters that DeSantis would moderate his policy thuggishness after his presidential campaign imploded in January, but his efforts to quash Amendment 4 suggests that the hope was forlorn. DeSantis can’t run for a third term as governor in 2026, because state law requires those who have been elected to two successive terms to stand down at least for one election cycle. Perhaps he has his eyes set on a presidential campaign in 2028.

As for Ladapo, as I’ve reported, he’s a living, breathing public health threat. He has advocated against giving the COVID-19 vaccine to anybody, promoted known useless nostrums such as hyderoxychloroquine and ivermectin, and undermined the drive to immunize schoolchildren against measles. The stupidity of his denigration of the COVID vaccines — there’s that word again — brought him a joint upbraiding by the Food and Drug Administration and Centers for Disease Control and Prevention in 2023.

Florida’s Amendment 4 would place the right to an abortion in the state constitution, barring the enactment of any law prohibiting or restricting abortions “before [fetal] viability or when necessary to protect the patient’s health.”

Fetal viability is generally deemed to come around the 24th week of pregnancy. The judgment of when an abortion is necessary would rest with “the patient’s healthcare provider.” It wouldn’t overturn some onerous provisions of state law, including the requirement for parental consent to minors’ abortions.

DeSantis and Ladapo pulled out all the stops to fight Amendment 4. As Floridians Protecting Freedom asserted in its lawsuit, the Republican-dominated administration’s tactics including litigating over whether the measure could appear on the ballot at all, “sending election police to question those who signed the petition” supporting the amendment and spending public funds on advertisements opposing the amendment and labeling as “lies” the organization’s pro-amendment arguments.

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The Republicans may have cause to feel concerned. Protection for women’s reproductive health rights has been a potent mobilizing force for progressive-minded voters and plays a prominent role in Kamala Harris’ presidential campaign; measures protecting or enhancing such rights have been on seven state ballots since the Supreme Court overturned Roe vs. Wade in 2022, thereby obliterating a federal guarantee of abortion rights.

Every one of those measures has prevailed, even in such ruby-red states as Montana and Kansas. (California voters placed the right to an abortion in the state constitution in 2022.) Similar measures will be on next month’s ballot in 10 states.

That may account for the panicky next step launched by DeSantis and Ladapo on Oct. 3: the letter threatening broadcasters with criminal prosecution for airing a commercial produced by Floridians Protecting Freedom and promoting Amendment 4.

In the ad — one of a series of commercials prepared by FPF — Caroline Williams, who is identified only as “Caroline,” tells her personal story: After she was diagnosed with terminal brain cancer in 2022 while 20 weeks pregnant, her doctors said she could obtain life-extending treatment that would give her more time with her husband and daughter, but only if she terminated her pregnancy. “The doctors knew if I did not end my pregnancy, I would lose my baby, I would lose my life, and my daughter would lose her mom,” she says on camera.

The 2023 law, however, bans abortions after six weeks only when they’re “necessary to save the pregnant woman’s life or avert a serious risk of ... irreversible physical impairment” of the pregnant woman. “None of these exceptions would have applied in Caroline’s case,” the organization says. She received an abortion in Florida in April 2022.

According to the state’s letter, which was signed by John Wilson, then the general counsel to the state Department of Health, Williams claim that she could be denied an abortion in Florida is “categorically false” — although the letter’s description of her case is at odds with the facts she laid out.

The letter calls the advertisement “dangerous,” on the grounds that if women are led to believe that they can’t receive abortion treatment in Florida, they might take inadvisable steps such as deciding to “seek emergency medical care from unlicensed providers in Florida, or not seek emergency care at all.”

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That threat to women’s health qualifies the ad as a “sanitary nuisance,” the letter states, adding that those responsible could be subject to “criminal proceedings.” After receiving the letter, a Fort Myers TV station stopped running the “Caroline” ad.

As it happens, Wilson stated in a court affidavit filed Monday that he was given the letter by an aide to DeSantis and ordered by two other gubernatorial aides to put his name to it.

In an earlier resignation letter obtained by the Tampa Bay Times, Wilson told his superiors: “A man is nothing without his conscience. ... It has become clear in recent days that I cannot join you on the road that lies before the agency.” The resignation letter didn’t specifically mention the advertisement issue.

I asked DeSantis’ office for comment specifically about Wilson’s statement about the origin of the letter, but didn’t receive one.

Judge Walker made short work of the state’s assertion that it was merely acting against “false” and “dangerous” claims. The 1st amendment doesn’t exempt false claims from its reach, he noted. As for ostensible dangers flowing from the “Caroline” ad, those were so tenuous that they didn’t give the state the right to act against the ad either.

DeSantis and Ladapo merely objected to what the ad said. The state, Walker wrote, commits “the greatest First Amendment sin — viewpoint discrimination — when it targets not just a subject matter, but ‘particular views taken by speakers’ on that subject matter.”

The threat against TV stations for airing a pro-abortion-rights ad is only one of numerous actions that conservative lawmakers and state officials have tried to block voters’ expression of support for abortion rights.

In Ohio, Republicans have floated the idea of stripping state courts of jurisdiction over implementation of the abortion rights amendment the voters approved, and even threatening judges who try to exercise such oversight with impeachment.

In Missouri, opponents of a ballot measure that would place reproductive health rights in the state constitution have tried misdirection, claiming the measure would promote gender-affirming surgery on children or allow abortions in the ninth month of pregnancy, even though neither is true.

What this tells us is that the antiabortion camp knows that its position is hopelessly unpopular with voters. Its only options are to block laws upholding women’s reproductive rights, lie about them, or keep voters from knowing the truth about them. But the electoral results we’ve seen thus far show incontestably that the public has wised up.