This op-ed was originally published in Tampa Bay Times.

I have been a doctor in Miami for more than 40 years. I am board-certified in obstetrics and gynecology, and have served as chairperson of the Department of Obstetrics and Gynecology at both Baptist and South Miami Hospitals. I currently serve on the department advisory committee at Baptist Hospital. 

I have cared for thousands of women and delivered thousands of babies. I treat my patients with compassion and understanding. 

Today, women in Florida have fewer reproductive rights than they did 40 years ago. Abortion restrictions jeopardize the health and well-being of women of childbearing age, women who have complications, such as pre-term premature rupture of membranes, and women who have life-threatening conditions, including cancer. 

This area of medicine is too complex to legislate, too complex for people who are not trained in medicine and not prepared for the myriad complications and complexities of each situation. 

I have worked hard to improve the quality of medical care, especially for women, which is why I am deeply concerned to see politicians making politically inspired medical judgments, especially those that threaten women’s health. 

That’s exactly what Florida Attorney General Ashley Moody’s effort to create medical and legal confusion where there is none would do. She is trying to deny Floridians the right to vote to impose limits in our state Constitution that would prevent government interference with abortion. 

The full text of the proposed amendment, titled “Amendment to Limit Government Interference with Abortion,” reads as follows: “Except as provided in Article X, Section 22, 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.” 

Yes, every pregnancy is different. But Moody is wrong to claim that because pregnancies vary, “viability” does not have a specific meaning in the abortion context. 

Moreover, because each pregnancy is unique, the constitutional amendment, if the people are allowed to vote on it and should it be adopted, will ensure that doctors can provide the best medical treatment in the individualized circumstances of their patients. 

If voters approve, the amendment will ensure that medical professionals, not politicians, can advise patients on whether an abortion is needed to protect the patient’s health or whether a fetus has reached viability. 

Doctors have been determining the viability of a fetus in order to advise patients about abortion — as a matter of constitutional right of their patient — in the almost 50 years since the U.S. Supreme Court decided Roe v. Wade in 1973. Moody’s attempt to propose a new definition of viability is unconvincing and unsupported. 

She conveniently ignores how viability is already defined, and her words undermine scientific knowledge, extensive research and the professional expertise of doctors and medical researchers. The U.S. Supreme Court, the Florida Supreme Court, the state of Florida, the medical community — and even your everyday dictionary — clearly and consistently define viability as the state of fetal development when the life of the fetus is sustainable outside the womb. 

Viability has been defined this way in Florida law since 1979 and in federal law since 1973. One-size-fits-all bans on abortion do not work for patients — or their doctors. Doctors must be allowed to care for their patients’ health, which requires that they be allowed to treat their patients on a case-by-case basis. 

Contrary to Moody’s claim, there is no medical — or even legal — confusion about the meaning of viability. Her tactic to create confusion, though, does have a political point. Her words are designed to convince the justices of the Florida Supreme Court that they should deny Floridians the right to vote to amend their own Constitution to protect access to abortion.

But the state Constitution belongs to the people, not the politicians.

Regardless of Moody’s tactics, one thing is clear: Floridians deserve a chance to make their voices heard by signing the petition to put access to abortion on the ballot and voting on it in 2024.

To support the ballot initiative, go to floridiansprotectingfreedom.com.

James Esserman, MD is a physician who is a board-certified obstetrician-gynecologist in South Miami.

In the 1920s and 30s, a stark white-on-black banner would sometimes appear in front of NAACP headquarters in Manhattan. It read simply, “A MAN WAS LYNCHED YESTERDAY.” The proliferating southern NAACP branches of the time would relay information about lynchings back to New York, where Walter White’s NAACP would broadcast the news by hanging out the banner.

In 2023, the ACLU, inspired by that broadcast, initiated a digital campaign to memorialize the lives of death-sentenced individuals at the time of execution, and called for an end to the death penalty. In 12 months, we memorialized 20 people executed by five states: Missouri, Oklahoma, Florida, Texas, and Alabama. The series illustrated the full range of systemic flaws of capital punishment in America: the targeting of people of color, low-income people, people with intellectual disability and mental illness, and other marginalized persons; the rampant police and prosecution dishonesty and demagoguery; the grossly underfunded and incompetent representation; the torturous execution methods; and the slaughter of innocent people.

These executions stood against the backdrop of the ACLU’s work around the country to bring the death penalty’s flaws to light and hasten its abolition. We filed litigation in Florida challenging the discriminatory effects of “death qualification,” a jury selection practice that disproportionately excludes people of color and those with religious objections to the death penalty. We presented evidence in Kansas at a hearing in support of a broad challenge to the constitutionality of the death penalty. In North Carolina, we prepared for a hearing seeking relief under the state’s Racial Justice Act, or RJA, and we launched and litigated similar challenges in California under that state’s newly enacted RJA.

We continued representing individual clients who received shockingly ineffective assistance at trials marked by discriminatory jury selection, junk science, and prosecutorial misconduct. Throughout the year, we drafted or joined amicus briefs on issues that included potentially botched executions in Arizona, the State’s suppression of evidence of a capital defendant’s innocence in Louisiana, and an illegal non-public trial in Kentucky.

We will start 2024 with a major hearing under the North Carolina RJA, and then continue our attack on racism in capital cases by seeking relief under California’s Racial Justice Act on behalf of clients facing capital trials in Riverside County, the nation’s heaviest user of the death penalty. We will be the first to challenge on direct appeal Florida’s recent legislation allowing non-unanimous juries to recommend death sentences — a practice that disproportionately silences the voices of people of color — on behalf of our client, Michael Jackson, in the Florida Supreme Court. And our practice of filing friend-of-the-court briefs before the Supreme Court in critical capital cases will continue.

Our work this year will be guided by our twin goals of preventing executions and, ultimately, abolishing capital punishment. The death penalty is out of step with the fundamental values of our democratic system: it is barbaric, inequitable, and unjust. The time has come for America to end this failed experiment.

The freedom to speak out and debate matters of public concern is a fundamental right that allows our democracy to flourish. As the world bears witness to the catastrophic war in Palestine and Israel, U.S. college students on both sides of this conflict have come out to protest and speak their minds. However, across the country, at public and private universities, students supporting Palestinian human rights are being silenced and censored. In Florida, for example, state university officials, in coordination with Gov. Ron DeSantis, ordered public universities to deactivate their Students for Justice in Palestine (SJP) chapters — a clear violation of the student group’s constitutional right to free speech and association.

The Unconstitutional Silencing of Pro-Palestinian Student Groups

In November, the ACLU sent out an open letter expressing our strong opposition to any efforts that stifle free speech on college campuses.

In response to this unconstitutional crackdown on pro-Palestinian student groups, the ACLU, ACLU of Florida, and Palestine Legal filed a lawsuit on behalf of the University of Florida chapter of SJP. ACLU legal fellows Shaiba Rather and Tyler Takemoto, members of the UF SJP legal team, joined our podcast to discuss the lawsuit and why protecting free speech on campus is so important.

Kendall Ciesemier: Can you tell us what Students for Justice in Palestine or SJP is as a student organization?

Shaiba Rather: Students for Justice in Palestine is a student organization that is committed to advocacy, organizing, and educating other people on their campus, the greater community, on the struggle for Palestinian freedom. These are diverse groups of students who take time out of their schedules to take on additional labor of putting on events, flyering, staging peaceful protests, etc.

KC: What was your reaction to the order to deactivate SJP chapters on campuses? What does it mean in terms of students, civil rights, and civil liberties?

Tyler Takemoto: The Supreme Court soundly holds that the First Amendment protects these types of student groups from a university’s efforts to deactivate them. When we saw this deactivation memo from Chancellor Ray Rodrigues, we knew it violated these students’ First Amendment rights.

SR: This memo calling for deactivation targets SJP chapters across University of Florida’s school districts without accusing University of Florida SJP itself of wrongdoing. Instead the memo cites two statements from an entirely independent and separate group’s toolkit — the National SJP. The attempt to punish University of Florida SJP for another group’s speech violates the First Amendment, and goes against basic principles in our legal system: guilt by association and independent advocacy that is not made at the direction of or in coordination with a terrorist organization is not material support for terrorism.

KC: What do you think is the real goal of deactivating these chapters?

SR: Silencing dissent, especially for causes like Palestinian freedom, isn’t new. The efforts by Gov. DeSantis and Chancellor Rodrigues echoes a concerning national trend that is very aggressive. The focus on material support accusations are crucial. Using this term implies that a student group is offering support to a recognized terrorist organization. It’s a loaded term that historically has been used against marginalized groups, from post 9/11 targeting of Muslim communities to weaponizing it against activists in an attempt to stifle dissent. Governments know that there is this trump card and will use it. And in this case, they’re using it to totally cut out the legs of pro-Palestinian movements.

Why We Must Reject Efforts to Restrict Constitutionally Protected Speech on College Campuses

Calls to punish and silence student activists betray the Constitution and the spirit of free inquiry that is critical to life at public universities.

KC: Can you tell us about what the lawsuit the ACLU and partners filed seeks to do, and what is the main argument from SJP?

TT: Our lawsuit seeks to challenge this unconstitutional memo to deactivate SJP chapters and prevent it from going into effect. Alongside our lawsuit, we filed a preliminary injunction aiming to block the state of Florida from enforcing the memo, a move to protect University of Florida SJP from the already chilling effects on free speech this memo has caused.

SR: This case can feel unique because of how urgent and sensitive it might be — however, this is well in line with decades-old Supreme Court precedent. Our complaint says that you can’t discriminate based off a viewpoint, you can’t interfere with a student group’s right to associate or speak on college campuses, and there is no exception for pro-Palestinian speech — full stop.

KC: The ongoing crisis in Palestine and Israel has sparked concerns about campus safety as students take action and voice their opinion. However, pro-Palestinian efforts have gained particular criticism from schools and local governments. What role does protecting students’ right to free speech play in ensuring campus safety?

SR: In moments of dissent and heated political tension, universities might be tempted to silence protests as a shortcut to creating a peaceful environment. The thinking might be, “If I cut out the protests, disorder is not going to affect my campus.” But silencing student voices isn’t a real solution. Universities must be steadfast in keeping all students’ free speech rights protected while guaranteeing everyone feels safe to learn and live on campus — and recognizing freedom of speech is not a threat to that goal.

TT: We’re seeing a concerning trend, predominantly one-sided, to punish students for speaking in this moment. Job offers have been rescinded for speaking in favor of the Palestinian cause, a disturbing effort to paint pro-Palestinian speech with a broad brush as dangerous, harmful, or even pro-terrorist. In these moments, I believe it’s crucial to make sure that our First Amendment rights are being enforced across the board to enable a nuanced and truthful conversation in this really painful and difficult time.

KC: There have been calls for university presidents to investigate their campus SJP chapters. Could you walk us through how this prompted our call to action?

SR: Once again, we are in heightened political tension, political moments, and ultimately there is no viewpoint exception to the First Amendment, and that also means there is no Palestine exception to the First Amendment. The ACLU stands firm in defending free expression, regardless of the perspective.

TT: College campuses have historically been at the forefront of free expression and diverse viewpoints around complex ideas. Anecdotally, as a recent law grad, I’ve witnessed calls to investigate my peers simply for aligning with student groups or signing sympathy letters expressing sympathy with the Palestinian cause. This has definitely created a McCarthyite atmosphere on these campuses where expressing opinions can lead to public shaming and accusations of extremism.

KC: As young people, why is it so important as young people to be helping other young people express their points of view?

TT: The First Amendment protects your right to organize and demonstrate on behalf of causes that you believe in. Regardless of whether you’re in K through 12, you don’t have fewer rights just because you’re a student — and the ACLU is here to ensure you know your free speech rights and have the freedom to make your voice heard.