Q&A of the Day – Florida’s Proposed Abortion Amendment, What’s the Definition of Fetal Viability?
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
Social: @brianmuddradio
iHeartRadio: Use the Talkback feature – the microphone button on our station’s page in the iHeart app.
Today’s Entry: Today’s question was submitted via Talkback asking about the definition of fetal viability as it pertains to Florida’s proposed constitutional amendment.
Bottom Line: Abortion is back in the news in Florida this week (as it’s likely to frequently be throughout the rest of the election cycle this year) following a CBS News poll of Florida’s voters released this past weekend. The CBS poll showed similar results to other recent Florida polls on the key races with former President Donald Trump currently shown with a 9-point lead over President Biden and Senator Rick Scott shown with an 8-point advantage over likely Democrat challenger Debbie Mucarsel-Powell. There was one election in this poll that produced a first this cycle. It’s the first accredited Florida poll to show the magic number needed for Florida’s proposed abortion amendment to pass.
In Florida proposed constitutional amendments need a minimum of 60% support to pass and in the CBS News poll of Floridians conducted last week that’s exactly what Florida’s Amendment 4, the proposed right to an abortion, polled with. Previous polling showed support for Amendment 4 topping out at 56%, but in the CBS poll there was what appeared to be a very strong showing for the proposal with 60% saying they intend to vote “yes” with only “20%” saying they intend to vote “no” with the balance undecided. Notably when the question was asked differently, specifically CBS asked if
abortion in Florida should be...Legal in all/most cases or illegal in all or most cases by a 65% to 35% margin “legal in all/most” carried the day. That’s effectively what the proposed abortion amendment calls for and could be an indication of how undecided voters CBS polled are likely to break. Should that prove to be the case the term “viability” will become a vitally important term in Florida going forward.
Today’s question asks about why a definition hasn’t been provided for viability. That’s a critical question because the language used in the proposed constitutional amendment states this: 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.
If the proposed amendment passes “viability” as determined by a patient’s healthcare provider is what the legal standard of abortion will be. The argument raised in today’s Q&A is precisely what the state of Florida’s argument was to the Florida Supreme Court in unsuccessfully attempting to prevent the proposed abortion amendment from appearing on ballots this November. As I noted in My Top 3 Takeaways February 8th after the Supreme Court hearing on the abortion amendment: During an opening exchange between Courtney Brewer, council representing the PAC which brought the proposed abortion amendment before the court, Floridians Protecting Freedom. Justice Sasso asked the question “how do we expect the voters to know the legal effect when there is no explanation at all given to the legal effect?”. The answer provided was: “Because the words that are used are understood by voters in the context in which they are used. There is no question that voters understand what viability means in the abortion context.” That struck me for two reasons. First... Do you know what viability means in the context of abortion? I mean yeah – it means when a baby could live outside the womb, but do you have any idea when or how exactly that’s determined? Neither did I because to the best of my understanding there’s not a finite timeline pertaining to viability. And as it turned out when I looked up the research on the topic that’s precisely what I found. According to a study by the National Institutes of Health, it is possible for 10% of fetuses to live outside the womb at 23 weeks, with 50% able to survive at 24 weeks and most fetuses surviving beyond 25 weeks. So how exactly does everyone understand what the word “viability” means in the abortion context when the answer is that there isn’t an exact answer?
Obviously, that consideration wasn’t enough in the eyes of the Florida Supreme Court to prevent the measure from being voted on by Florida’s voters. But the answer was provided by the proposed amendment sponsors, and it is called for in the proposal. Viability is whatever is determined by a patient’s healthcare provider, the patient’s doctor. So, in answer to today’s question – viability is defined in the proposed amendment. This is where the devil is in the details.
If the patient’s doctor is an abortion doctor, how often might you think that they’d find a fetus to be “viable”? Do you think it might vary from say your average OB/GYN? This is why the amendment’s sponsors didn’t want to define viability beyond a subjective standard of an abortion doctor. Had they said, for example, that abortions up to 25 weeks or longer may be performed at an abortion doctor’s discretion the proposal would likely have far less support than the opaque standard of “viability as determined by a healthcare provider”.
Effectively the sponsors wanted abortion on demand with minimal, if any restrictions at any stage of pregnancy and they came up with a cleverly worded way they believe they can use to make it happen. This is why it’s important for Floridians to become informed on this amendment prior to voting in November. If passed it’s unlikely any meaningful modifications to the amendment would be able to be made by the legislature because Florida’s Supreme Court already accepted the definition of viability. If passed Florida’s abortion standard would effectively be the loosest in the country and enshrined in the state’s constitution.