Florida’s abortion waiting period back in spotlight after court ruling

The 24-hour waiting period case could eventually become a key test for the Florida Supreme Court, which has historically backed abortion rights but is now dominated by conservative justices.
The First District Court of Appeal in Tallahassee. [Kristen M. Clark / Herald/Times]
The First District Court of Appeal in Tallahassee. [Kristen M. Clark / Herald/Times]
Published Aug. 1, 2019|Updated Aug. 1, 2019

In a victory for Republican state leaders and abortion opponents, a split appeals court Thursday overturned a circuit judge’s decision that tossed out a 2015 law requiring women to wait 24 hours before having abortions.

The 2-1 decision by a panel of the 1st District Court of Appeal sends the case back to Leon County circuit court. The 24-hour waiting period case could eventually become a key test for the Florida Supreme Court, which has historically backed abortion rights but is now dominated by conservative justices.

Appeals-court Judge Timothy Osterhaus, in a majority opinion Thursday joined by Judge Harvey Jay, pointed to state arguments that a 24-hour waiting period is needed to ensure “informed consent” by women before abortions are provided.

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The state’s “evidence supporting the 24-hour law raises genuine issues of material fact,” Osterhaus wrote.

“Rather than singling out and burdening abortion procedures with arbitrary requirements, the state’s evidence indicates that the 24-hour law brings abortion procedures in Florida into compliance with medical informed consent standards and tangibly improves health outcomes for women,” Osterhaus wrote.

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Leon County Circuit Judge Terry Lewis, who has since retired from the bench, ruled in January 2018 that the waiting period law was unconstitutional. Lewis sided with abortion-rights supporters, who argued the law violated privacy rights and would place roadblocks in the way of women seeking abortions.

Lewis wrote the state failed to show there was a “compelling state interest” for the 24-hour waiting period and didn’t show that it was enacted in the “least restrictive manner.”

“The essential problem is that the language of the act --- what’s in it and what’s not -- belies the claimed compelling nature of the state interest being advanced, and demonstrates ambivalence, if not outright hostility, to the mandate that the least restrictive measures be utilized to advance that interest,” Lewis wrote.

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Lewis issued a summary judgment without holding a full trial. The Supreme Court in 2017 had issued a temporary injunction blocking the waiting period law from taking effect.

In sending the case back to circuit court Thursday, the appeals-court majority said that because “disputed genuine issues of material fact remain, appellees (the law’s opponents) are not entitled to final summary judgment.” It ordered “further consideration of appellees’ facial constitutional challenge.”

Osterhaus also wrote that Lewis used a wrong legal test in ruling that the law was unconstitutional.

“Women claiming particular harms from the 24-hour law based on their specific circumstances may challenge the law’s application to them. But those would be as-applied constitutional challenges. No such challenge has been made here,” Osterhaus wrote. “For this facial challenge, the correct legal test is not whether the 24-hour law violates the constitutional rights of some women in some circumstances, but whether it violates the rights of all women in all circumstances.”

But, siding with Lewis in a dissent from Thursday’s majority ruling, Judge James Wolf wrote that the state failed to demonstrate the need for the waiting period.

“There is simply no evidence supporting the concept that information regarding abortion is more complex and needs more time to be understood versus other complex medical procedures. Absent such evidence, a restriction targeting a woman’s right to choose suggests that the act is based on nothing more than hostility toward the constitutionally protected abortion procedure,” he wrote.

Florida’s “general informed consent law does not mandate that patients delay their care after receiving the required information or make an additional visit to their doctor,” Wolf wrote, noting there is “no other medical procedure that has a mandatory delay period after a patient has received the informed consent information.”

Wolf also questioned the state’s rationale that “having an abortion without due deliberation may increase risk of anxiety, depression, suicide, and drug use” and that significant numbers of women later regret having the procedure, saying such evidence does not justify singling out abortions for the delay.

“Other medical procedures can be stressful and lead to regrets about the decision, which can cause anxiety, depression, and drug use. And this can happen regardless of the time taken to make the decision,” the judge wrote.

Plaintiffs in the legal challenge, filed on behalf of a Gainesville abortion clinic and a group of medical students, could appeal Thursday’s ruling to the Florida Supreme Court, ask the appellate court for a full-court rehearing, or agree to have a Tallahassee judge reconsider the lawsuit.

The case could become a barometer for abortion-related legal issues in Florida, particularly after changes early this year on the Florida Supreme Court.

Three supporters of abortion rights --- justices Barbara Pariente, R. Fred Lewis and Peggy Quince --- left the bench because of a mandatory retirement age. Republican Gov. Ron DeSantis appointed three replacements, Barbara Lagoa, Robert Luck and Carlos Muniz, who created a solid conservative majority on the court.

The ideological shift on the Supreme Court and the firmly conservative 1st District Court of Appeal will make it more difficult to overturn abortion restrictions passed by the Republican-dominated state Legislature, said Richard E. Johnson, one of the lawyers representing the plaintiffs in the case.

“It means that abortion rights will perhaps be diminished in Florida,” Johnson told The News Service of Florida.

But abortion-rights supporters “are going to continue the fight,” Johnson said.

“It’s just that the fight is not as easy as it used to be. But when the fight gets tough, we don’t drop out. We keep going,” he said.

Johnson pointed to recent laws in other states that have forced women “to travel a great distance or leave the state" to obtain an abortion.

“I don’t think it will reach quite that degree in Florida, because there would be too big of a public outcry,” he said.

The law originated from a bill sponsored by Rep. Jennifer Sullivan, R-Mount Dora, whose mom, Patricia, is a long-time conservative activist in Central Florida who founded the North Lake Tea Party. It passed the House on a 77-41 vote along party lines. It passed the Senate 26-13, also along party lines, after the most emotionally-charged debate of the 2015 legislative session.

Shortly after then Gov. Rick Scott signed it into law, the American Civil Liberties Union sued to prevent it from going into effect until it was decided by the courts.

-- News Service of Florida. Tampa Bay Times archives contributed to this story.