Judge says 15-week abortion law unconstitutional

By Ryan Dailey
News Service of Florida

Ruling that a new Florida law placing a 15-week limit on abortions violates a privacy clause in the state Constitution, a Leon County circuit judge said he will issue a temporary injunction to block the law.

Judge John Cooper, however, said last Thursday his verbal ruling will not be binding until he signs a written order. That written order was expected this past Tuesday.

The law (HB 5) was set to take effect last Friday. That means it will be in place for at least a few days before Cooper issues the written order. The state also quickly announced it plans to file an appeal, which would automatically freeze Cooper’s order and effectively put the law back into effect.

Cooper drew a distinction between the state constitutional issues in the Florida case and the U.S. Supreme Court’s decision last week that struck down the landmark Roe v. Wade abortion-rights ruling.

“I do think that this order complies with the present state of the law in Florida. And we all know that Roe v. Wade was reversed about a week ago. And the only mention Roe v. Wade should get in this particular case … is that it has indicated the (U.S.) Supreme Court (said) that these decisions are to be made at the state level. That’s what this proceeding is about, is construing a provision of the Florida Constitution,” Cooper said.

The privacy clause has played a key role for more than three decades in bolstering abortion rights in Florida. But Bryan Griffin, deputy press secretary for Gov. Ron DeSantis, said in a statement that the Florida Supreme Court “misinterpreted” the privacy clause.

“While we are disappointed with today’s ruling, we know that the pro-life HB 5 will ultimately withstand all legal challenges. The Florida Supreme Court previously misinterpreted Florida’s right to privacy as including a right to an abortion, and we reject this interpretation. The Florida Constitution does not include — and has never included — a right to kill an innocent unborn child. We will appeal today’s ruling and ask the Florida Supreme Court to reverse its existing precedent regarding Florida’s right to privacy. The struggle for life is not over,” Griffin said.

When the state files an appeal at the 1st District Court of Appeal, it will automatically trigger a stay of Cooper’s order, under court rules. While plaintiffs could ask Cooper to vacate the stay, he said Thursday he does not intend to override it.

Lauren Brenzel, organizing director of the Florida Alliance of Planned Parenthood Affiliates, called Cooper’s ruling a “victory.” But Brenzel described uncertainty about whether post-15-week abortions will be available as potentially creating confusion for patients.

“It’s really unfortunate, and this shows us exactly why politicians should not be interfering with access to health care. Imagine being a patient right now and trying to access safe care that should be legal in our state, and you’re having to worry about whether or not they’ll be able to provide it to you on one day or the other,” Brenzel told reporters outside the Leon County courtroom.

The law, one of the most-controversial issues of the 2022 legislative session, would prevent doctors from performing abortions after 15 weeks of pregnancy, with limited exceptions. Abortion clinics across the state and a physician filed the constitutional challenge June 1 and sought a temporary injunction.

Cooper held an all-day hearing this past Monday that included testimony from witnesses. In siding with the plaintiffs, Cooper said he found a plaintiffs’ witness “more knowledgeable and credible” than witnesses offered by the state.

During closing arguments this past Thursday, attorneys focused, in part, on whether the plaintiffs had proven that they would be directly harmed by the law.

James Percival, an attorney representing the state, disputed an argument by the plaintiffs that the law would cause harm by interfering with patients’ relationships with their doctors.

“I think the important point here is that this is not some case where some private actor is interfering with a doctor-patient relationship. The state is setting medical standards,” Percival said.

Whitney White, an attorney for the plaintiffs, argued that penalties doctors would face for breaking the law would interfere with services and, as a result, cause harm.

“There’s no dispute that plaintiffs currently offer abortions after 15 weeks and that they would be forced to stop that under coercion of the threatened criminal and licensing penalties that HB 5 carries. HB 5 will thus force plaintiffs to stop providing safe, comprehensive and compassionate health care to their patients, against their medical judgment, and against the needs and best interests of the patients,” White said.

Cooper’s ruling drew reactions from numerous political leaders on both sides of the abortion debate, with many speculating the case will end up in the Florida Supreme Court. While justices in the past have ruled that the privacy clause protected abortion rights, the court since 2019 has become far more conservative — with four DeSantis appointees likely to be on the seven-member court later this year.

“Today’s ruling on pro-life HB 5 is disappointing but not unexpected. This issue will need to be resolved in the (Florida Supreme Court), where I hope to see a correct interpretation of the state’s privacy clause & HB 5 implemented statewide to save tens of thousands of innocent babies’ lives,” House Speaker Chris Sprowls, R-Palm Harbor, said in a tweet.

State Senate Minority Leader Lauren Book, D-Plantation, touted Cooper’s ruling and said it “protects abortion access” in Florida.

“Extremist GOP leaders will continue their crusade to strip away women’s rights and freedoms — that much is clear — but make no mistake: advocates for choice and for women to have autonomy over their bodies will be there at every turn, continuing to fight with everything we have until women’s rights are fully restored,” Book said in a prepared statement.