Waiting on a ruling: FL’s 15-week abortion ban challenge may happen after the law takes effect

FL Supreme Court long ago upheld a privacy right to abortion. Will it retreat?

By: - June 28, 2022 7:00 am

Protestors gather at the Historic Florida Capitol building following the U.S. Supreme Court ruling that overturned abortion protections under Roe v. Wade. June 24, 2022. Credit: Danielle J. Brown

A state trial judge may not rule in a legal challenge to Florida’s 15-week abortion ban before the law imposing it takes effect on Friday, adding to the national confusion as states ranging from Georgia and Louisiana to Utah adjust to a shifting abortion landscape.

July 1 is the effective date for Florida’s HB 5, passed during the Legislature’s regular session this year to forbid abortions past that gestational age unless a pregnancy endangers the health of the mother, with no exception for rape and incest. Some states are already pushing new abortion restrictions, such as Ohio’s six-week ban, and outright bans following last week’s U.S. Supreme Court decision overturning Roe v. Wade.

Gov. Ron DeSantis signs into law a 15-week abortion ban in Florida. April 14, 2022. Credit: DeSantis Facebook page.

Gov. Ron DeSantis signed Reducing Fetal and Infant Mortality Act on April 14.

Circuit Judge John Cooper of Leon County had hoped to complete testimony and closing arguments during a daylong trial on Monday, and then deliver a bench ruling that evening and give the winning lawyers a day or so to write an opinion for him to review and sign.

But the attorneys, representing the Florida Attorney General’s Office plus Planned Parenthood and other abortion providers, didn’t finish examining witnesses until the courthouse closed at 5:30 p.m.

That left no time for closing arguments. And Cooper has to review the case file in the lawsuit before he can issue a ruling. Plus, he has other proceedings on his calendar that can’t be delayed running well into this week, the judge said.

“I’m aware that July 1 is on Friday,” Cooper said. “But all I can do is what I can do.”

He told the attorneys to come back to court at 8:30 a.m. on Thursday.

“I’m going to be honest with you. When I hear closing argument and if I make a ruling on Thursday, I don’t think it’s going to be reduced in writing by Friday.”

What will Florida Supreme Court do?

Hovering over the proceedings were questions about whether the Florida Supreme Court, when the case ultimately lands before it, will retreat from its 1989 ruling that the Florida Constitution’s privacy clause provides even broader protections for abortion rights than did Roe v. Wade, which the U.S. Supreme Court overturned on Friday.

Cooper seemed to acknowledge that the state’s high court — rendered vastly more conservative by DeSantis’ appointments since taking office — could pay as much deference to its 1989 precedent as the U.S. Supreme Court did to Roe: None.

“Do both sides also agree that I’m required to follow the law as its set forth by the Florida Supreme Court, or is there any disagreement on that?” Cooper asked the assembled attorneys.

“There is disagreement about the law is and what’s binding, what’s dicta — things like that,” replied James Percival II, chief deputy solicitor general for the state. (Dicta means judicial asides that don’t speak to the meat of a case or establish precedent but may influence future rulings.)

“Do both sides agree that it’s not my function to try to predict what the Supreme Court might do in the future,” Cooper followed up. “That would be called activism, wouldn’t it?”

Later, commenting on the shortness of time, Cooper commented: “I totally understand the state wanting to set a record to ask the Supreme Court to change those three opinions. That’s in the category of that’s their business, not my business,” he said.

He referred to three times when the Florida Supreme Court ruled that the constitutional provision went beyond what the U.S. Supreme Court allowed: Once in 1985, T.W., and again in 2003.

In re T.W.

Florida Supreme Court
Florida Supreme Court. Credit: Shutterstock.com

In the 1989 case, In re T.W., the state Supreme Court cited a 1980 constitutional amendment establishing: “Every natural person has the right to be let alone and free from governmental intrusion into his private life.”

“Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime, except perhaps the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment,” the court said at the time.

That ruling extended those protections to minors.

DeSantis and anti-abortion Republicans in the state Legislature saw their opportunity to attack abortion in May, when a draft of U.S. Supreme Court Justice Samuel Alito’s opinion striking down Roe v. Wade got leaked.

The abortion providers in the lawsuit on Monday, and the ACLU of Florida, which is supporting the legal action, cited the 1980 constitutional amendment in challenging the law, plus the 2012 failure of a proposed amendment to overturn In re T.W., in urging Cooper to block its enforcement.

‘Very safe’

The providers’ team called the first witness, Dr. Shelly Tien, an Ob-Gyn who works in a Planned Parenthood clinic in Jacksonville and elsewhere around the country. She testified that abortion is “very safe,” with complications arising in only 0.5 percent of cases.

Although the vast majority of abortions come in advance of HB 5’s 15-week threshold, Tien testified, the law is a problem because that’s when dangerous pregnancy complications can emerge. The law allows abortions past 15 weeks under those conditions, but only with the agreement of two doctors, which imposes greater costs and delays on pregnant people, she added.

Reproductive rights advocates gather in front of Florida’s Historic Old Capitol building to protest a Texas-style abortion ban that was filed last month in Florida. Oct. 2, 2021. Credit: Danielle J. Brown

Even though abortion restrictions in some states have pushed women to seek the procedure sooner — even in Texas, with its six-week ban — that’s not possible for women suffering late-developing and dangerous complications, Tien said.

“These are not women that can just get abortions sooner because the law has changed,” she said.

Fetal pain

Attorneys for the state presented evidence purporting to show that the state has valid reasons for limiting abortions after 15 weeks.

They called Maureen Condic, a non-M.D. professor of neurobiology and pediatrics at the University of Utah, who testified to her conviction that life begins at conception and that the fetal brain is developed enough to react to “dangerous or noxious stimulus” — meaning exhibit a reflex reaction —as early as 10 to 12 weeks gestation.

They would be conscious of pain at around 14 to 20 weeks’ gestation, Condic said.

Cooper observed that the Florida law would subject fetuses to pain under that definition.

The state next called Ingrid Skop of the anti-abortion Charlotte Lozier Institute, an OB-GYN who testified about the purported dangers of abortion. She said chances grow for serious complications as pregnancy advances and that encouraging earlier abortions would help.

Skop waved away the American Psychological Association’s finding that abortion doesn’t cause mental health problems but that denying the procedure can. She said the group ignores evidence of harm to teenagers and pregnant people undergoing later abortions.

Her clinical experience tells her that people do suffer depression and other mental health problems following abortions, she added.

Other medical groups that advocate for abortion rights, including the American Medical Association and American College of Obstetricians and Gynecologists, Skop dismissed as biased. They’re acting for “social reasons” and “should be sticking to medicine,” she said.

Skop also dismissed data on abortion-related medical complications as tainted by shoddy reporting by doctors about unhappy outcomes. The CDC could “more actively look for data on that,” she said.

At the end of the day, the abortion providers’ attorneys recalled Tien, who insisted that the state closely monitors abortion clinics to ensure they operate safely and that the CDC is “quite proactive” in studying abortion outcomes. As for pain, fetuses don’t develop the “basic circuiting” to feel pain until the third trimester, or 24 to 26 weeks, she said.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.