TALLAHASSEE — A Leon County circuit court judge said he will temporarily block Florida’s 15-week abortion ban, but not before the law takes effect on Friday.
Following a day and a half of arguments, Judge John C. Cooper said Thursday that the law passed by state lawmakers and signed by Gov. Ron DeSantis “is unconstitutional in that it violates the privacy provision of the Florida Constitution.”
He said he would issue a temporary injunction to stop the law, but it might not happen until early next week.
“It will be not today,” Cooper told attorneys on Thursday.
Until then, Florida’s abortion providers will have to stop providing abortions after the 15th week of pregnancy, the biggest change to the state’s abortion laws in decades.
“We’re going to follow the laws,” said Lauren Brenzel, an activist for Planned Parenthood, which sued to stop the legislation from taking effect. “We will provide safe and legal care.”
A spokesperson for DeSantis said that his administration would appeal Cooper’s decision, and that the legislation “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,” spokesperson Bryan Griffin said. “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.”
The law, passed by the Legislature and signed by DeSantis in April, would ban most abortions after the 15th week of pregnancy. People can still obtain an abortion after that cutoff if their health is threatened or if their baby has a “fatal fetal abnormality.” The bill was set to take effect Friday.
Previously, state law allowed abortions until the third trimester, or 24 weeks, unless the pregnant person’s life could be at risk, or if the pregnant person risked “irreversible physical impairment of a major bodily function.”
In June, several Planned Parenthood chapters and individual abortion providers sued to stop the law, known as House Bill 5, from taking effect, arguing it violated Florida’s right to privacy.
Targeting previous court decisions
State lawmakers, like their counterparts in numerous states, passed limits on abortion partly in anticipation of the U.S. Supreme Court’s eventual overturn of Roe v. Wade, the landmark 1973 case that established a constitutional right to abortion.
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But the legislation appeared to fly in the face of three decades of Florida Supreme Court precedent establishing that abortions are protected under the state’s right to privacy.
While the state Constitution doesn’t protect abortions outright, voters in 1980 approved an amendment establishing that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”
In 1989, the Florida Supreme Court ruled that the privacy clause covered the right to abortion.
“We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime,” the opinion read.
Since that opinion, however, the state’s Supreme Court has been reshaped by Republican governors, including DeSantis, who has chosen three of its seven justices.
Like the U.S. Supreme Court did in overturning Roe v. Wade, Florida’s justices have shown increasing willingness to overturn past precedent. In 2020, for example, they stunned observers by ruling that a unanimous jury should not be required to sentence someone to death, overturning 50 years of precedent.
Lawyers for the state made clear they were targeting past precedent. They cited both the overturning of Roe v. Wade and the Florida Supreme Court’s decision in the death penalty case as developments that “call into question the continuing viability of Florida’s abortion precedents.”
They told Cooper in court and in filings that they were setting the case up for appeal, writing that, “as a matter of original public meaning, the right to privacy does not include the right to an abortion.”
Lawyers also argued that the plaintiffs did not have standing, and that the impact of House Bill 5 will not be as dramatic as critics say.
Of the 79,817 abortions performed in Florida in 2021, according to the state, 74,967, or about 94 percent, were performed within the first 13 weeks after the person’s last menstrual period.
They also argued that they were protecting children.
“If there is a chance that we are inflicting pain on a conscious living being, we would think that this state has a compelling interest in erring on the side of caution with something like that,” attorney James Percival said Thursday.
Cooper said he was bound by the current law and Supreme Court precedent.
“I do think that this order complies with the present state of the law of Florida,” Cooper said.
Injunction could be short-lived
Cooper’s injunction could be short-lived. Once the state appeals Cooper’s order, the injunction will be nullified through a stay.
An attorney for the American Civil Liberties Union, which is representing the plaintiffs, said they will then seek to lift that stay. But in the meantime, at least one abortion provider is turning away patients.
All week, Dorothy Brown, director of the Tampa Woman’s Health Center, has fielded calls from people seeking abortions after 15 weeks of pregnancy — some from Florida residents, others from callers in nearby states like Mississippi and Louisiana, where abortion is about to become illegal.
Brown has turned them away ahead of the anticipated July 1 ban, referring them to clinics in states with broader abortion protections.
After Thursday’s announcement, a doctor at her clinic asked if they should start calling these would-be patients back. Brown told her to hold off.
“If the injunction gets signed, we will then open up the book to make appointments for those people,” Brown said.
“We’re willing to act very quickly if it becomes legal again.”
But she’s instructed her staff to be clear with Floridians booking appointments after 14 weeks of pregnancy: The pendulum could swing back at any minute.
”We’re trying to not make patients suffer,” Brown said. “This could go away in a minute if DeSantis challenges it, and we expect his team to. We could tell a patient, yes, come in, and schedule something for Tuesday. And then on Monday, this could become illegal again.”
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