Few things in Florida are ever clear-cut, black-and-white, yes-no decisions, and the state’s new, tighter abortion restrictions are no different.
Until July 1, the Sunshine State had allowed abortions until 24 weeks of pregnancy. But as of July 1, a new law, House Bill 5, closed that window to 15 weeks, with no exceptions for pregnancies caused by rape or incest.
But abortion rights advocates and a Florida doctor had filed a lawsuit on June 1 in anticipation of the tighter, July 1, 15-week restriction. That lawsuit cited a privacy clause in the Florida Constitution that supporters of women’s reproductive rights have long used to uphold Floridians’ rights to an abortion until 24 weeks of pregnancy, which is when a fetus is considered viable outside the mother’s womb.
Leon Circuit Judge John Cooper issued a temporary, 15-day injunction to block implementation of the new law, saying it violated the privacy clause in the state’s constitution.
Cooper had ruled that the Florida Constitution “grants explicit protections for the right to privacy that do not exist in the U.S. Constitution, and that the Florida Supreme Court has established that this grants protections for a woman’s right to get an abortion.”
The state appealed Cooper’s injunction, which automatically suspended the judge’s decision to halt implementation of the 15-week ban under state law.
Translation: As of July 6, Florida’s new, 15-week abortion law was back in place. The 15-week ban includes exceptions only if the pregnancy poses a risk to the mother’s life or if the fetus has a fatal defect, but does not include exceptions for pregnancies caused by rape or incest.
“The Center for Reproductive Rights, American Civil Liberties Union, ACLU of Florida, Planned Parenthood Federation of America, and the law firm Jenner & Block, which filed the lawsuit on behalf of Florida abortion providers, said they plan to file a motion to reinstate the temporary hold on Florida’s 15-week abortion ban and they will continue to work to permanently ban the law,” according to ABC News on July 6.
The Center for Reproductive Rights stated in a press release, “The law, which has been in effect since July 1, has already had devastating consequences on the health and futures of Floridians by forcing them to continue carrying pregnancies against their will.”
On July 5, Florida Attorney General Ashley Moody’s office filed a document asking that the legal battle over a 15- or 24-week abortion restriction be expedited to the Florida Supreme Court, which would bypass the appeals court process.
“The circuit court has enjoined HB 5, which restricts the small fraction of abortions in Florida that occur after 15 weeks’ gestation and do not meet one of HB 5′s exceptions,” states the attorney general’s request. “The state’s appeal from that decision raises questions of exceptional public importance that warrant immediate resolution by the Florida Supreme Court. This (1st District) Court should so certify this appeal (to the Supreme Court) as soon as practicable.”
The same filing also indicates that Moody’s office plans to use the recent U.S. Supreme Court decision that struck down the 50-year precedent of Roe v. Wade, which guaranteed federal protections for abortions, as a way to dismiss abortion rights that have been seen as protected by Florida’s constitutional privacy clause.
“That sea-change in federal law plainly warrants reconsideration of the Florida Supreme Court’s interpretation of Florida’s own constitutional right to privacy, and there will be great uncertainty in Florida until it does so,” the Florida attorney general’s office wrote.
On the other side of the case, attorneys advocating for abortion rights filed a motion asking Cooper to overturn the automatic ending of his halt to the 15-week rule. They want Florida’s prior 24-week abortion law to remain in effect until the appeals process is complete.
“Every day that HB 5 remains in effect, Florida patients in desperate need of post-15-week abortion services are being turned away and forced to attempt to seek abortions out of state, if they are able to do so; to attempt abortions outside the medical system; or to continue pregnancies against their will,” the motion states. “It is unjustifiable to impair plaintiffs’ ability to provide care to Floridians, as courts have held that ongoing violations of constitutional rights support an order to vacate a stay.”
According to the Sun Sentinel on July 6, “Cooper indicated during a hearing last week that he was unlikely to override a stay.
“While the Florida Supreme Court has relied on the privacy clause in the state Constitution to uphold abortion rights, the court has become far more conservative since early 2019. That is because of the retirements of longtime justices Barbara Pariente, R. Fred Lewis and Peggy Quince and the appointment of justices by Republican Gov. Ron DeSantis,” the Sun Sentinel states.
The legal battle in Florida is one of several throughout the country following the U.S. Supreme Court’s ruling that abortion rights and restrictions should be decided by individual states and not the federal government.
At least 12 states have ceased nearly all abortion services. Some Republican lawmakers in Florida have expressed a desire to see even more restrictions beyond the 15-week ban, but that’s the only law currently being argued in Florida’s courts.
Stay tuned to the Keys Weekly for a closer look at how local lawmakers and health care providers would respond to potentially more restrictive rules.
