Editorial: Florida Supreme Court should keep abortion restriction on hold

Published Nov. 4, 2016

The Florida Supreme Court is weighing whether to allow a state law to take effect that requires women to wait 24 hours before obtaining an abortion. Passed in 2015, the law is an end run around reproductive choice that is unlikely to hold up under Florida's strong right-to-privacy protections in the state Constitution. But because a lawsuit challenging the law's constitutionality is likely to take years, it's critical that the court uphold an injunction and not add to the burden of women facing this difficult decision by allowing the law to take effect while the legal fight plays on.

The legislation, which passed along party lines with heavy Republican support, would force women to make at least two trips to the doctor, have a face-to-face conversation giving informed consent and then wait at least 24 hours before having the procedure. Legislators included an exemption for women who have been the victim of rape, incest, domestic violence or human trafficking — but only if they can prove it with a police report or medical record. Billed as a modest restriction that allows women adequate time to weigh their decision, the law is anything but empowering. Instead, it assumes women can't make this choice on their own.

The American Civil Liberties Union filed suit, alleging the law overburdens women who live far from a clinic or who can't afford multiple days away from work or family for doctor visits. The ACLU argues the law violates the Florida Constitution, which says "every natural person has the right to be let alone and free from governmental intrusion into the person's private life." For decades, courts have interpreted that privacy clause to protect the right to an abortion. A trial judge agreed to prevent the law from taking effect while the suit moves forward.

This week, in arguments before the state Supreme Court, a lawyer for the state claimed that the waiting period is "outcome-neutral."

"The state is not trying to encourage or discourage abortions just as the state is not attempting to discourage marriage or anything else," attorney Denise Harle argued. But the words of legislators who supported the bill suggest otherwise. In 2015, Senate sponsor Anitere Flores, R-Miami, said she had heard "horror stories from women who regret their decision." Sen. Lizbeth Benacquisto, R-Fort Myers, equated abortions with "people who didn't get to achieve their dream, to fulfill their purpose, to do what they were meant to do." Rep. Jimmie Smith, R-Inverness, said having an abortion means "you are personally choosing to end a life."

Does anyone seriously believe the Republican-led Legislature is "neutral" about women making their own decisions about their health and their pregnancies?

In passing the 24-hour rule, Florida joined 26 other states with waiting periods ranging from 18 to 72 hours. Florida's Republican lawmakers may argue that they are trying to help women, but as Justice Barbara Pariente noted, no medical reason has emerged in the decades since abortion became legal to justify such a restriction. Women considering abortion give serious thought to their choice, and they are not helped by a law that second-guesses them and makes it harder to exercise their constitutional right.