TALLAHASSEE, Fla. – A federal judge who recently chastised Florida officials for “trampling” on free speech rights continued to block the head of the state's health department from taking any more steps to threaten TV stations that air commercials for an abortion rights measure on next week’s ballot.
U.S. District Judge Mark Walker extended a temporary restraining order, siding with Floridians Defending Freedom, the group that created the ads promoting the ballot question that would add abortion rights to the state constitution if it passes Nov. 5.
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Walker handed down the decision from the bench after hearing arguments from attorneys for the campaign and state officials. The order extends a previous one that bars State Surgeon General Joseph Ladapo from taking any further action to coerce or intimidate broadcasters that run the commercials.
Walker said extending the temporary restraining order will give him more time to rule on the preliminary injunction that the abortion rights campaign is requesting. The order will run through Election Day and expire on Nov. 12, unless the judge rules before then.
The group filed the lawsuit after Ladapo and John Wilson, who was then the top lawyer at the state health department before resigning unexpectedly, sent a letter to TV stations on Oct. 3 telling them to stop running an abortion rights ad, asserting that it was false and dangerous. The letter also says broadcasters could face criminal prosecution.
The ad at issue features a woman named Caroline Williams who said Florida’s current law — which bans most abortions after six weeks — would have barred her from getting the procedure that her doctors said was needed to extend her life, after she was diagnosed with terminal brain cancer in 2022. Her providers wouldn’t go forward with her cancer treatment while she was still pregnant.
An attorney for the state argued that the claims made in the ad are dangerously misleading and could put Floridians at risk if they don’t seek out medical care because they believe all abortions in the state are banned.
Spreading “false information about the availability of lifesaving medical services” is not protected by the Constitution, attorneys for the state wrote in legal filings.
At Tuesday’s hearing, attorney Brian Barnes compared the FPF ad to a hypothetical commercial that falsely claims the state’s 911 system has shut down, creating a public health emergency.
“We see this case as being controlled by the same legal principles that would apply for the 911 hypothetical,” Barnes said.
An attorney for FPF maintains that “the ad is true,” and that it features a Florida resident describing her own medical circumstances in her own words.
Lawyer Ben Stafford argued that robust free speech protections are vital for a functioning democracy, especially in matters where there are clear disagreements on difficult moral and religious issues like abortion.
“What the First Amendment does is leave matters like that to the public marketplace of ideas," Stafford said, “not the whims of a government censor.”
The decision Walker handed down on Tuesday extends an Oct. 18 order barring state officials from “trampling” on the free speech rights of those they disagree with.
“The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is ‘false,’” the judge said in the previous order.
He added, “To keep it simple for the State of Florida: it’s the First Amendment, stupid.”
Tuesday’s hearing is the latest development in an ongoing fight between advocates for abortion rights and officials in the administration of Republican Gov. Ron DeSantis, who has waged his own state-funded campaign to block the ballot measure.
If approved by 60% of Florida voters, the constitutional amendment would protect the right to an abortion until fetal viability, considered to be somewhere past 20 weeks. The measure would override current state law, which bans most abortions after six weeks, before many women know they’re pregnant.
In the weeks leading up to the election, DeSantis has held taxpayer-funded, campaign-style rallies with doctors and religious leaders to advocate against the proposed amendment. Four state agencies have set aside millions of dollars in public funds to create their own commercials railing against the abortion measure and another proposed constitutional amendment that would legalize recreational marijuana use in the state — a move that critics say violates a state law that bars government officials from using their public office for electioneering.
At a media event in Naples on Tuesday, flanked by doctors advocating against the ballot measure, DeSantis claimed that providers who say state laws bars them from performing an abortion on patients in medical distress are “totally lying” and should lose their medical licenses.
The Associated Press and other news organizations have reported cases of Florida women being denied care for a miscarriage or nonviable pregnancy, despite the risk of serious complications, because providers feared legal repercussions if the patient’s life wasn’t deemed sufficiently in danger.
“Any suggestion, advertisement, anything to suggest that Florida law in any way prevents a physician from caring for anybody in Florida, for women, for pregnant mothers, is a lie,” DeSantis said.
The AP previously reported a Florida case in which a doctor admitted state law had complicated emergency pregnancy care.
“Because of the new laws ... staff cannot intervene unless there is a danger to the patient’s health,” a doctor at Memorial Regional Hospital in Hollywood, Florida, told an investigator who was probing the hospital’s failure to offer an abortion to a woman whose water broke at 15 weeks, well before the fetus could survive.
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Kate Payne is a corps member for The Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.