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Florida's abortion ban restored on appeal
Evan Axelbank reports
TALLAHASSEE, Fla. - A new Florida law blocking doctors from performing abortions after 15 weeks of pregnancy remains in effect despite a Leon County circuit judge’s ruling that it is unconstitutional, as attorneys for the state swiftly appealed the decision Tuesday.
In a 68-page ruling, Judge John Cooper sided with a doctor and a group of abortion clinics that argued the law (HB 5) violates a privacy clause in the state Constitution. Cooper said Thursday he would issue a temporary injunction against the law but did not release a written ruling until Tuesday.
"As explained, plaintiffs have third-party standing to represent their patients’ right to privacy in this case and have shown that HB 5 would cause their patients to suffer irreparable harm," Cooper wrote.
Shortly after Cooper issued the decision Tuesday morning, the state’s attorneys filed a notice that they were appealing to the Tallahassee-based 1st District Court of Appeal. When the state files such a notice, it triggers an automatic stay — effectively meaning that Cooper’s ruling is on hold and that the 15-week abortion limit remains in effect while the case continues to play out.
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Whitney White, an attorney for the plaintiffs, said last week they will seek to overturn the automatic stay.
"Under Florida law, as soon as the state appeals the court’s injunction, that appeal will act as an automatic stay. Which means essentially that the appeal itself will pause the effect of the injunction and allow HB 5 to take effect again. If and when that happens, plaintiffs will file immediately to seek to lift that stay and to allow the injunction to go back into effect. We will move quickly and will continue fighting with every tool in our toolbox to ensure that we can vindicate and protect abortion rights in Florida," White told reporters Thursday.
The case hinges on a 1980 amendment to the Florida Constitution about a right to privacy. The Florida Supreme Court has long held that the privacy right extends to women’s right to terminate pregnancies.
In a statement to reporters last week, a spokesman for Gov. Ron DeSantis said the state Supreme Court had "misinterpreted" the privacy clause to include the right to abortions.
"The Florida Constitution does not include — and has never included — a right to kill an innocent unborn child," Bryan Griffin, DeSantis’ deputy press secretary, said after Cooper issued the verbal ruling Thursday.
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Defendants in the lawsuit include the Florida Department of Health, the state Agency for Health Care Administration and medical licensing boards, such as the Florida Board of Medicine.
Cooper in his ruling said the right to privacy in the Florida Constitution is broader than "any privacy right" under the U.S. Constitution.
The judge held a hearing in the case last week but rejected a series of arguments made by the state’s attorneys.
For example, Cooper rejected an argument that the abortion providers will not be harmed by the law because they intend to comply with it, and, as a result, would not be subject to penalties it carries for violations. Providers could face third-degree felony charges and the loss of licenses for breaking the law.
"Coerced compliance is still an injury in fact," the judge wrote.
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Cooper also cast doubt on the credibility of testimony provided by the state’s witnesses, including physician Ingrid Skop, director of medical affairs for the Charlotte Lozier Institute, which is affiliated with the lobbying organization Susan B. Anthony Pro-Life America.
The judge focused on Skop’s testimony that she has never performed abortions and her disagreements with major medical organizations on abortion issues.
"Overall, Dr. Skop has no experience in performing abortions; admitted that her testimony on the risks of certain abortion complications was inaccurate and overstated, or based on data from decades ago; admitted that her views on abortion safety are out of step with mainstream medical organizations; and provided no credible scientific basis for her disagreement with recognized high-level medical organizations in the United States," Cooper wrote.
Meanwhile, Cooper found more credible the evidence of physician Shelly Tien, a plaintiff in the case. Tien works with Planned Parenthood of South, East and North Florida in Jacksonville and testified that she has performed abortions on patients who have passed 15 weeks of pregnancy.
The new law was one of the most-contentious issues of the 2022 legislative session, and the legal challenge has drawn intense attention, particularly after the U.S. Supreme Court last month overturned the landmark Roe v. Wade ruling on abortion. The U.S. Supreme Court’s ruling handed over decisions about abortion regulation to states.
The U.S. Supreme Court decision in a Mississippi case has ramped up political battles about abortion in Florida and other states.
Democratic gubernatorial candidate Nikki Fried on Tuesday criticized the decision by the DeSantis administration to appeal Cooper’s decision.
"Florida’s Constitution guarantees every Floridian the right to privacy and from radical government intrusion. The 15-week abortion ban is not only an affront on women, it defies our Constitution. If I were governor, I not only wouldn’t appeal this ruling because it is right, I would have vetoed the bill," Fried, the state agriculture commissioner, said in a prepared statement.